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Every once in a while, someone will ask me a question that prompts a “that is crazy” reaction and I dismiss it as absurd. It may be a few minutes, hours or days later, but eventually I think about the question again. I may even research it a bit. Then comes the point when I realize that not only was the question brilliantly insightful, but I question myself for not instantly recognizing its legal significance.
That was the case recently when a fire chief asked me whether he needed to discipline firefighters who read and send work-related emails while off duty. Your expression is probably similar to mine when the question was first posed. But there actually is a potentially serious problem that employers, including fire departments, need to consider.
Fair Labor Standards Act
The basic wage and hour law in the U.S. is the federal Fair Labor Standards Act (FLSA). It defines what types of employees are considered to be hourly, how many hours they can work per week before becoming eligible for overtime and requires that overtime be paid at 1½ times the normal hourly rate.
While exempt personnel such as fire chiefs and certain high-ranking staff personnel are not subject to overtime pay, most line firefighting personnel (even chief officers) are considered to be hourly employees.
A fairly simple question – one that is so simple that it is often overlooked – is what hours must an employee be compensated for? While most people understand that the hours that an employee physically shows up to perform work for an employer are compensable, the issue can get a lot more complicated. One area that gets more complicated is when an employee engages in work-related activities that benefit the employer, but the employer does not specifically mandate that the work be done.
Under the FLSA, time that an hourly employee spends doing work on behalf of an employer, even if not requested or required by the employer, is compensable. Historically, the most common example occurs when an employee voluntarily comes in early to perform preparatory work or stays late to finish up. The FLSA says such work is compensable even if the employer did not order it. This makes perfect sense when we consider that historically employers had an incentive to place subtle (or possibly not-so-subtle) pressure on employees to “volunteer” to come in early or stay late to do “extra” work.
To address that concern, the FLSA makes the employer liable for any extra work performed by employees even if not required or requested, and places the burden on the employer to avoid liability for compensating employees for such “voluntary work.” Employers must take affirmative steps to prevent employees from performing extra work. This includes taking reasonable steps to prohibit employees from performing such voluntary work when they are aware of it.
A similar issue arises when an employee agrees to “take work home” to complete while “off the clock.” An employer cannot escape liability for compensating such an employee by saying that “home work” was done “voluntarily.” If the employer is aware of the extra work, and fails to take reasonable steps to prevent it, the employer could be liable to compensate the employee for hours worked at home. These basic wage and hour principles are not new and the case law defining the obligations of an employer to manage an employee’s work time go back to the earliest days of the FLSA.
How do we apply these well-established principles in the age of digital technology, the Internet and smartphones? It creates somewhat of a dilemma. Consider these:
• An off-duty employee logs onto the fire department network from home to check his email
• An employee replies to a work-related email on his fire department-issued smartphone while out to dinner with his family