Should My Employer Pay Me for After-Hours Calls and Emails?

The answer to whether your employer needs to pay you for answering emails or telephone calls after regular work hours depends on how you are classified as an employee. There are two classifications of employees – “exempt” and “non-exempt” employees. 

Exempt employees are exempt from the minimum wage and overtime laws, while non-exempt employees are subject to those laws. Exempt employees are usually executive, administrative, or professional employees and generally must meet a specific pay threshold to qualify as exempt. (For more on this topic, see our previous post, What Is an Exempt Employee and How Does Exemption Affect Pay?)

Since exempt employees do not have to be paid overtime, if you are legally classified as an exempt employee, your employer will not have to pay you to take calls or respond to emails after hours or on weekends. But the same is not true for non-exempt employees.

Many employers, in an attempt to avoid paying overtime to non-exempt employees, have instituted policies that prohibit non-exempt employees from working overtime unless they receive advance approval. While this may seem like a good solution for employers, it does not always negate their obligation to pay a non-exempt employee who performs work beyond the forty-hour-per-week threshold.

Technology has made it easy to connect with employees after hours, on weekends, and during time off, sometimes leading to an “always available” mindset for both employers and employees. The Fair Labor Standards Act (FLSA), which is the law that governs the federal minimum wage and overtime pay, requires employers to pay non-exempt employees at one and one-half times the regular rate of pay for any time any employee is “suffered or permitted to work” in excess of forty hours a week.

The key phrase is “suffered or permitted.” This means that if 1) the employer requires or expects the employee to work beyond the forty hours, the employer is required to pay the overtime rate, and 2) if the employee is not required, but is allowed to work in excess of forty hours, the employer is also required to pay. In other words, even if your employer does not ask you to respond to email or telephone calls after hours, but has reason to believe that you are doing so, the employer is required to pay for overtime.

For example, if your employer (i.e. boss or supervisor) gives you work with a deadline such that it is unreasonable to expect the work to be completed during normal working hours, you must be compensated for any overtime required to complete the task. This includes requiring you to review or respond to email or telephone calls (or text messages, for that matter) outside of your regular, forty-hour workweek. Notably, it may also include instances in which you decide to initiate or respond to emails or calls outside of working hours. If your employer has not explicitly instructed you not to do so and/or if your supervisor or employer is aware that you regularly conduct business after hours and does nothing to stop it, your employer may be on the hook to pay you overtime for that work.

The Supreme Court has indicated that compensation is not necessary if “de-minimis” work (10 minutes or less) outside of work hours is performed. Although each email or phone call may take less than 10 minutes, it is the cumulative amount of work, not the amount of work involved in each individual task, that is important. So if responding to phone calls or emails after-hours is a regular occurrence, compensation may be required. 

If you are a non-exempt employee and your employer fails to pay you for after-hours work, you may be able to recover back wages, liquidated damages, attorneys' fees, and costs stemming from the employer's violation of the FLSA.