In California, salaried employees must be paid overtime unless they are considered exempt under federal laws, California laws, or an Industrial Welfare Commission Wage Order. Some non-salaried employee may also be entitled to overtime. As wage and hour disputes continue to rise, employees wonder if answering work emails and phone calls off the clock should count as overtime.
Workers across the country have already challenged the expectation to answer work emails and calls out of work. In response to the after-hours demands created by cellphones and email, T-Mobile USA Inc. and CB Richard Ellis Group Inc. employees sued their companies, claiming that hourly workers should be paid for time spent responding to work messages during off hours on company-issued phones. In the case against CB Richard Ellis, the plaintiff sought back wages for being forced to remain reachable during off hours via a company-issued Blackberry. A Chicago police officer is suing the Chicago Police Department, claiming that he should be paid to use his BlackBerry 24/7.
If your supervisor emails you after hours and you respond, your employer is “suffering or permitting” you to work after hours. In California, if your work duties require you to check emails while off duty, you should be paid for that time. This also applies to text messages. If a supervisor is texting you late in the day or after hours, he knows that you’re working and should make sure that you are paid for those hours. Likewise, if you have to take phone calls about work in your spare time, that’s work that needs to be paid for.
An exception to being entitled to pay for work at home is if the total time spent on emails or calls off duty is considered de minimis, or so small that it is impractical to record the time. Determining what is de minimis will depend on the facts of the case, but a few seconds or minutes a week will most likely be considered too insignificant to count as recorded time. At least one California case has discussed the de minimus rule, holding that between two and six hours per week overtime was not de minimus. Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 527.