The Legal Implications of Expecting Employees to Work After Hours

For the majority of SMB owners, work does not end when the storefront closes. Responding to emails, checking voicemails and calling employees after hours with an “I can’t let this slip my mind” thought happens all too often, blurring the boundaries of work/life balance.

The evolving work environment, along with the technologies that support it, is alleged to promote a more mobile and flexible workforce, which focuses on tasks accomplished over hours clocked in at the office. The problem however, is when this mobile autonomy turns into more of an electronic leash between manager and employee. In order for remote work to be perceived as a job perk instead of a cellular tether, managers need to respect the boundaries and legal rights of remote workers when discussing business after hours.

An article featured in the Wall Street Journal estimated that as much as 44 percent of employees use their phones to check work email and work-related texts after hours. Most managers read that statistic and get giddy inside, either wishing their employees were so dedicated to their work, or proud that they are. While there are employees that don’t mind midnight work, and will respond to their manager within seconds come hell or high water, the majority of employees build resentment from the lack of respect for their personal time. In addition to resentment, over connectedness could become a source of overtime litigation due to a proposal under the Obama administration.

Legalities of overtime work.

Police officer Jeffery Allen and 50 of his fellow officers, filed a class action lawsuit against the city of Chicago, seeking overtime pay for off-duty hours spent monitoring and responding to work emails and phone calls on their department-issued mobile phones. Cases like this are likely to increase as a proposed overtime rule by the Labor Department would raise the minimum salary an employee must make before he or she can be classified as exempt (from $23,660 to $50,440) -- allowing an additional 5 million workers to collect overtime pay (there are several exempt professions and additional fine print to this proposal). In general, more overtime-eligible workers means greater litigation risk and greater need for established communication policies and expectations for both managers and remote employees.

Setting clear guidelines.

While it’s important to be aware of every possible legal implication your business faces, it’s not anything to come unhinged about. First, this is only applicable to certain types of businesses employing workers in specific salary ranges. Second, the only time issues like this transfer into the legal realm is when employees are being taken advantage of -- so don’t do that. Set clear guidelines about after-hours communication so that laws are followed and the employee’s time (as well as your own) is respected. If your employees are exempt from the overtime laws, it’s still important to set clear expectations about communication so that no one is annoyed, no one is being taken away from their personal lives to handle work, and your employees are productive during the time you pay them to be.

Setting clear guidelines about after hours communications is simple to do, but ensuring they are successful can be more difficult. For example, in 2011, Volkswagen AG in Germany cut off employees’ corporate email between sunset and sunrise to ensure work ended when they left the office. Carsten Krebs, director of communications, said the experiment has been a huge success. Other companies, such as the Kellogg School of Management, believe that cutting the cord after hours is more about the work culture than the technology itself. “If you really want to shut down the workaholics, you have to do it firm-wide by setting that example,” says Kelly Goldsmith, assistant professor of marketing.

The way we work is evolving. The tools we are using are enabling a truly flexible work environment that focuses on quality of work, not quantity (or in this case, number of clocked-in hours). The benefits of mobility are bountiful, but taking advantage of the capability can cause employee resentment, stress, and legal implications for businesses. Managers seeking to use mobility the appropriate way, ensuring maximum productivity, should set clear expectations and guidelines about after hours work. If employees and managers have different understandings about mobile connectivity and disagree about how it will work for them, it’s much better to discover that early on in the process than later down the line. Managers and employees are on the same team (believe it or not) and it’s important to mind the needs of everyone on the team in order to be successful.