There has been a lot written from the HR point of view regarding controls on what employees are doing on the internet (email, LinkedIn, facebook, twitter, et al). However, I have found very little written regarding how it applies to hours worked and the potential ramifications.
There are several parts of the Title 29, Part 785, subpart C of employment regulations that are pertinent. First § 785.11 “Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.” In other words, if you allow it to happen and it benefits the company it is considered hours worked.
Second, §785.12 “Work performed away from the premises or job site. The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” Therefore, even if it doesn’t happen on the work premises, it is still hours worked.
Third, §785.13 “Duty of management. In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” So employers are responsible for managing and controlling the hours their employees work.
What does all this mean? What is the impact on the workplace?
The biggest impact is with regard to non-exempt employees (employees who are entitled by law to overtime pay); if they exceed 40 hours in the workweek they must be paid time-and-a-half.
Additionally, for both exempt and non-exempt employees, any benefit for which the employer has a threshold described in hours, any hours spent on twitter, facebook, or LinkedIn for work-related purposes (whether at the office, at home, or while sitting in a restaurant on their iPhone) must be put toward meeting those thresholds. In other words, these extra hours could put an employee into a category for which he was not previously eligible, whether it’s 1250 hours per year to be eligible for FMLA, or 1000 hours per year to participate in the company’s 401K, or 20 hours per week to participate in the company’s group health insurance, etc.
Other examples of when hours must be counted as hours worked include an employee who is out on FMLA, on vacation or home sick but responds to an email or does some business networking on LinkedIn. And what happens when your assistant is on his/her unpaid lunch and you send a text asking where a particular report is? Well, that just became a paid lunch and must be counted as hours worked.
The internet and social media have created a whole new world, and employment laws have not kept pace. The line between working and not working has become very blurred. Further, employment lawsuits have been increasing every year, but they have been increasing at alarming rates during this economic downturn.
Employers need to make it very clear in their policies that employees are not to do work during non-work hours. If it is necessary for your employees to respond to a text message, answer an email, or tweet, they need to report their hours so they can be paid.
Here’s a novel idea – have them tweet their hours.
