Many managers and employees want to know: Under what circumstances is it legal, ethical, or a good business decision to contact hourly employees outside of working time?
When determining the soundness of texting an hourly employee outside of work hours, there are a few important things to consider:
Who is an hourly employee?
According to the IRS, a worker is, by default, an employee unless it can be proven that they are an independent contractor. Hourly employees are employees who are paid by the hour, and, in most cases, they are classified as nonexempt under the Fair Labor Standards Act (FLSA). This means that they:
- must be compensation for all hours worked,
- must make an hourly rate not less than minimum wage, and
- must receive overtime pay, based on federal, state and local requirements.
When determining the soundness of texting an hourly employee outside of work hours, there are a few important considerations. In this blog, we shed light on these major factors and address your burning questions.
What is considered working time vs non-working time?
Working time is defined by the Fair Labor Standards Act (FLSA) as time spent performing activities during the workday. The workday begins when the employee starts performing their principal work activity (the job they were hired to do) and ends when they stop performing that principal activity.
This means that you must pay employees who are:
- Performing the principal activity that the employee was hired to perform
- Performing any activities needed to support the principal activity
- Any other activity that falls between the start and end of a day’s principal activity. This even includes sleeping on the job!
If you hire someone to maintain and repair machinery, then any activities that are needed to perform those functions are considered compensable work time. Oiling machinery, organizing tools, etc. are all done on paid time, and any other activity that is performed during that workday is compensated.
If your mechanic takes a personal phone call or eats a sandwich or uses the restroom during that period, they still get paid. The only exception to this rule is for meal breaks of 30 minutes or more.
Do you have to compensate employees if you text them during non-working time?
Sending employees text messages before or after work may or may not be compensable time.
Texting the mechanic to ask him how to fix a machine or where to find the tools to fix the machine would be considered compensable, but asking him if he forgot to clock out from work on Friday would not.
Other examples of communications that are generally not compensable outside of working hours include:
- Asking an employee about their availability to work (i.e. scheduling correspondence)
- Discussing time off requests
- Employee engagement communications that are voluntary
- Reminders to submit timecards or other reminders not related to their primary work activity
Employers should control the content and timing of messages with a solid employee communications tool.
When should you avoid texting your employees?
Are there times when you should avoid messaging your employees? Yes, and these include:
When they are on unpaid meal breaks - Messaging hourly employees who are on their unpaid meal breaks could result in compensable time. In other words, you could have to pay them for their entire meal break. This is because employees must take their meal breaks completely free from work activities in order for the meal break to be unpaid.
When they are on vacation - Many studies make the solid business case for providing employees with frequent, uninterrupted time off work. Other research shows the negative impact that working while on vacation has on employee engagement. Even something as brief as an uninterrupted nap before starting a night shift has been shown to increase worker job performance and safety.
When they are on protected leave - Finally, avoid texting or otherwise reaching out to employees who are on protected sick leave, family leave, or other types of job-protected leave with work-related questions, as this may be interpreted as illegally interfering with the employee’s right to take leave. Leverage the right text-based tools to communicate with employees to help keep your organization in compliance.
Other things to consider when texting your employees
Working without permission - Texting, calling or emailing an employee outside of working hours may also result in the employee performing additional work above and beyond your “quick question.” Even if you don’t ask an hourly employee to perform work, if they work it, you have to pay them. The DOL is very clear on this point. Avoid costly unapproved work with regular company policy reminders.
On-call pay - On-call pay can also come into play if you are requiring employees to stand by and wait for your instructions (e.g. they are waiting for you to text them). The general rule of thumb is that, if your employee is not free to go about their daily personal business while they wait, then they are being “engaged to wait” vs “waiting to be engaged,” and you must pay them for all of that waiting time as if they are working.
The reality is that sometimes managers need to get a hold of employees after hours
Perhaps you are short-staffed and need to call someone in to work or ask where to find something important quickly. Whatever the reasons, these communications happen, so you need to know how to handle them.
The important thing, from a preventing employee burnout standpoint, is to ensure that these types of encroachments on workers’ personal time are the exception and not the rule. You want to also let employees know that you appreciate them taking the time to help you out on their day off.
And, of course, if what they are doing for you via text, email, or phone constitutes “work”, pay them for it.
Start texting your employees today with TeamSense - send yourself a text now to see how it works.
Note: Commentary from TeamSense should not be construed to be authoritative legal or public health guidance. Organizations should follow the latest guidance from relevant governmental and public health authorities and seek counsel from appropriate Legal, HR, and EHS professionals.