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
• An employee completes a fire report from home while off duty
• An off-duty employee exchanges work-related text messages with his company officer using his personal smartphone
In each of these cases, the employee’s time may be considered compensable under the FLSA. The problem is truly a “sleeper” issue in so far as relatively few businesses (let alone fire departments) are aware of it. There is a great deal of concern among some attorneys and there undoubtedly is a potential exposure should an employee or employee group raise the issue.
De minimis solution
The FLSA cases that have addressed the off-duty use of technology suggest that there is a de minimis (Latin for “about trifles”) exception to the compensable-time calculation. In other words, not every off-duty work-related activity is compensable. Time spent momentarily checking work-related email while off duty does not have to compensated. Most authorities recommend using 10 minutes as the threshold for compensable time. Less than 10 minutes would generally be considered to be de minimis, and not compensable.
Another factor that courts have considered is frequency: if personnel are checking and replying to work-related emails daily or several times a day, then even if the sessions are of short duration, they may not be considered de minimis. The courts have not provided any sort of concrete guidance in terms of what duration and frequency combinations are enough to go beyond de minimis and into compensable time.
A final consideration that courts have considered is whether the employer attaches a negative consequence to those who do not promptly check and respond to their email. In the digital age cases where an employer has been held liable for extra overtime, a key factor has been that the employer demands that employees respond promptly to emails and messaging while off duty and penalizes non-compliant employees in some manner. Even a penalty such as a negative comment on an annual review would be enough.
So what do we need to do?
First, there is no need to panic. This issue is relatively new and the case law is evolving slowly. Certainly in departments where the issue has been raised, it needs to be addressed promptly with local legal counsel familiar with the FLSA. For the rest of us, we need to consider implementing some sort of a policy on the off-duty use of fire department technology without creating an unnecessary controversy.
The best approach is to prohibit non-exempt personnel (i.e., hourly workers who are entitled to overtime) from engaging in work-related activities such as completing reports, checking and responding to work-related emails, and engaging in work-related text/instant messaging while off duty, without prior written authorization. The policy should provide an exception for de minimis use. Most authorities are comfortable with establishing a de minimus threshold in the seven-to-10-minute range.
Some authorities recommend that employers require personnel to track any time spent (including de minimis time) using the department’s normal time-tracking procedures to ensure that the frequency of off-duty use is not too high. Ensure that there are no penalties associated with non-exempt personnel who do not immediately respond to work-related emails. In this regard, supervisors (even company-level officers) need to be trained so they do not unwittingly demand that their subordinates respond to work-related emails and messaging activities while off duty.
Lastly, to answer the question that prompted this column: no, I do not recommend that firefighters who violate the policy be disciplined. They should be counseled and monitored for future violations. Of course, if the violations continue despite the counseling, it could be grounds for insubordination. I’d pedal very slowly up that hill. n
Curt Varone presents “Firefighters and Digital Imagery: The Problem and the Solution” and “Professional Standards Approach to Leadership and Discipline” at Firehouse World 2014.