I read with interest a recent post by Michael Kun in the Epstein Becker wage hour blog concerning (non-exempt) employees seeking payment for and/or suing for compensation for time spent checking and responding to emails and utilizing other PDAs on (ostensibly) Company business after business hours and on weekends. I spoke on this topic at a Wage-Hour conference in Miami three years ago and the issue has only become more incendiary for the business community.
I agree with him that employers often utilize or seek to utilize a de minimis defense but the DOL itself and a number of court cases hold that even five minutes per day, which becomes 25-30 minutes per week, is not de minimis. Simply putting all of one’s eggs in that basket is not the prudent, proactive step to take. With things like this, the employer has the opportunity (perhaps borne out of necessity) to proactively implement a policy to address these issues and limit, insofar as possible/feasible, any claims, whether individual or collective, for off-the-clock work involving PDAs and emails.
The policy would stake out, initially, whether any email or PDA usage is allowed after the shift is over. A blanket policy against any such use is allowable, but may not prove operationally doable. Naturally, if such a policy is implemented, there must exist a reporting or channeling mechanism so that employees can report emergency times and seek reimbursement, as opposed to perhaps thinking that they just have to “eat” the time. That is how lawsuits, especially collective/class action suits, are created.
If the policy is going to allow for or provide for after-hours PDA usage, there must exist a detailed and reportable time keeping system. Building into the reporting system some concept of de minimis (e.g. less than five minutes) might be acceptable, but might also prove risky as it is the aggregation of these little bits and pieces of “productive” time that overcomes a de minimis argument/defense.
Still, getting out in front of this issue, with a carefully drafted policy, is the best way of providing a defense and, more importantly, assuring fairness and transparency to employees on what does and does not count as working time.