Should You Be Paid Overtime for Answering Late Night Work Email?

This was the question posed by Lauren Weber of The Wall Street Journal in her article, "Can You Sue the Boss for Making You Answer Late-Night Email?"

The author cites Pew Research Center studies that report 44% of internet users regularly did some job tasks outside the workplace. While smartphone technology has greatly increased the availability of workers, it hasn’t necessarily increased their overtime. While the vast majority of white-collar workers are exempt from the Fair Labor Standards Act and Minimum Wage Act, new Department of Labor rules are expected to change this.

In Washington, what constitutes “work” is the often a major dispute in minimum wage and overtime cases. “Work” is not defined in the MWA or the FLSA, but the courts have defined work as activity or inactivity that is requested or allowed by the employer and that is pursued predominantly for the employer’s benefit, even though it confers a benefit on the employee.

See: Tennessee Coal, Iron & Railroad Co. v. Muscoda Local 123, 321 U.S. 590, 598, 64 S. Ct. 698 (1944) (defining work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business”).

The Washington Administrative Code defines “work” under WAC 296-126-002(8), as “hours worked” as “all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed workplace.”[1]

Several notable companies have been sued for failing to pay overtime for smartphone use after hours, namely Verizon, T-Mobile and Black and Decker. Set for trial in August 2015, a Chicago police sergeant has filed suit against the City of Chicago alleging that he was required to respond to emails and text messages while off duty, but without receiving overtime.

While there have been relatively few of these types of smartphone/after-hours cases, this may change following revision of the Department of Labor rules expected for release and public comment any day now.

[1] Applied in Stevens v. Brink’s Home Security, Inc., 162 Wn.2d 42, 48-50, 169 P.3d 473(2007), Mechanics were engaged in “work” when they drove company vans from their home to the first customer at shift’s start and drove from the last customer to home at shift’s end.

MIND THE GAP: Washington is One of Many States to Not Require “On-Call” Pay

This week, NPR reported on Attorney General Eric Schneiderman’s request for detailed staffing and scheduling information from 13 big retail chains, including Target, Ann Taylor, Gap, J.C. Penney and Abercrombie & Fitch.

The inquiry focuses on dated “reporting-time” laws intended to ensure workers are paid a minimum number of hours when they physically show up at a job for a scheduled shift. Nowadays, employees report being notified via text message or email whether they are required to work that day. This practice can circumvent the requirement to pay employees minimum hours.

New York is one of just 8 jurisdictions with reporting-time pay laws that include: California, Connecticut, The District of Columbia, New Hampshire, New Jersey, Massachusetts, Oregon (minors only), and Rhode Island. Surprisingly, Washington does not require “show-up” pay. The Washington Department of Labor states “Generally on-call pay does not have to be paid unless the worker is actually called back or receives a phone call at home that will fix the problem, which would be considered hours worked.”

Washington has very strong laws that protect workers from performing work without pay, however “on-call” or “show-up” pay is noticeably missing from these laws. As retailers use new technologies to meet efficient staffing needs, the employee ultimately loses where he or she is constantly “on-call” but without pay.

How Come You Don’t Get Paid Overtime?

Do you remember when you were an hourly employee and you received “time and a half” for hours worked over forty? Your boss needed you to work and you needed the money. Life was good. A great exchange of extra money for your valuable time.

But now, you are older, wiser, more educated, more experienced and now paid on a “salary”. So what happens when your boss asks you to work over 40 hours? You work… but you don’t get paid.

So whatever happened to overtime pay?

Odds are high, you don’t receive overtime and aren’t required to. In fact, a study done by the Economic Policy Institute (“EPI”) reported that only 11% of American workers are required to receive overtime. This is generally because:

  1. Your position is likely “exempt” under the current definitions of executive, administrative, and professional employees[1] and
  2. Your annual income does not fall below $23,660 ($455 per week) to qualify for mandatory overtime under the Federal Labor Standards Act (“FLSA”).

The FLSA, passed in 1938, gives the Federal Department of Labor (“DOL”) authority to promulgate regulations and enforce federal labor laws. However, the last update to the overtime dollar amount threshold occurred in 1975. As a result, most businesses are able to require “overtime” be performed by the employee without extra pay.

If this strikes you as unfair, then regardless of your political affiliation, you have a friend in the White House. On March 13, 2014, President Barack Obama issued a presidential memorandum calling for revisions of the DOL’s regulations that could have a major impact on salaried workers in America. These revisions are expected this Spring.

The President has called for revisions of the exemptions for “executive, administrative, and professional employees” (often referred to as “white collar” exemptions). These exemptions, in addition to the $455 per week regulations, have been criticized widely and allowed for low-wage positions to be exempt from overtime (i.e. “Assistant Managers” or “Shift Supervisors” at popular fast food restaurants, despite performing the same or similar duties as hourly employees).

So what does this all mean to you? Well, the Economic Policy Institute equates the current $455 per week, $23,660 per annum rate to $984 a week or $51,168 in today’s dollars. Meaning, employers paying less than $984 per week, may be required to pay non-exempt employees overtime if the new regulations adjust to these amounts and definitions are updated. This could have a substantial economic impact on white collar workers either directly in the form of additional compensation for additional hours worked (or reduced hours) or indirectly through increased hiring to fulfill a previous unpaid need.

[1] These are just a few of the positions excluded from the FLSA and state Minimum Wage Acts. The Minimum Wage Act and FLSA have different minimum wage and overtime exemptions. In addition, the Minimum Wage Act does not include many of FLSA amendments, namely, amendments passed in late 1940s.

Overtime laws vary widely from state to state.  If you have questions or concerns whether you are paid appropriately, you should seek legal advice from an employment lawyer.

3 Common Myths of Wagetheft in Washington

Last November, I had the privilege of speaking alongside Federal and State Department of Labor and union leaders on the issue of wagetheft in Tacoma. I was asked to speak about my own experiences as a private attorney who represents low-wage workers recover unpaid wages and/or payment for denial of rest breaks.

What became clear during the discussion and the public’s Q&A afterward, is at least three common myths surrounding wagetheft still exist.

Myth: “I am afraid to complain to my boss because I will be fired.”
Answer: An employer is prohibited from discharging or discriminating against an employee for complaining to the employer or the government that his or her RCW 49.46 rights have been violated, for filing or about to file proceedings “under or related to RCW 49.46, or for giving testimony or being asked to testify in proceedings “under or related to” RCW 49.46.[1] The Federal Labor Standards Act also prohibits retaliation for exercising wages rights.[2]

Myth: “I can’t afford a private attorney to pursue my unpaid wages claim.”
Answer: A worker owed wages has several options. He or she may make a complaint at the Department of Labor and Industries (State/Federal), complain to their union (if applicable) or hire a private attorney. Most private attorneys, like myself are paid by the employer only in the event they recover wages for the worker. The strong Washington worker laws allow for an employee to hire a private attorney on a contingency basis.

Myth: “I am not a US Citizen, am I still entitled to wage law protection?"
Answer: The law surrounding undocumented workers is constantly changing. Washington State has made a leading effort to protect the rights of undocumented workers by preventing worker status from entering the courtroom.[3] Second, the Rules of Professional Conduct prohibit an attorney from making assertion or inquiry “about a third person’s immigration status when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter.” Even the Washington State AG’s Office will not inquire as to immigration status of anyone complaining of wage theft.

[1] RCW 49.46.100(2)

[2] See: Lambert v. Ackerly, 180 F.3d 997, 1002-05 (9th Cir. 1999) (en banc decision holding that FLSA prohibits retaliation based on informal complaints to employer); Valerio v. Putnam Assoc., 173 F.3d. 35, 45 (1st Cir. 1999).

[3] In Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 230 P.3d 583, the Washington State Supreme Court held it was an abuse of discretion under ER 403 to allow a jury to learn of the Plaintiff’s immigration status in awarding lost future income. The Court wrote:

Former Seahawk Brings Wagetheft to Seattle

Last Friday, the Washington State Attorney General announced criminal charges against Former Seattle Seahawk defensive tackle Sam Adams. Adams is the owner of the West Seattle Athletic Club in Seattle and the Lincoln Plaza Athletic Club in Tacoma. While the Tacoma club is now closed, The Seattle Times reported that 20 employees filed labor complaints against the clubs for unpaid wages and benefits during his ownership.

Friday’s announcement marks only the second time the Attorney General has filed criminal charges in a wage-theft case. While the Washington Department of Labor and Industries investigates more than 4,000 civil complaints of wage theft a year, criminalizing wage theft has been a problem of enforcement in many communities. Seattle’s own efforts to criminalize wagtheft have resulted in exactly 0 convictions, despite being law for over three years.

The AG’s high-profile criminal charge against a former Seahawk as well as last fall’s Paseo suit involving unpaid workers brings much needed attention to wagetheft in the region.

The public can support such efforts to eliminate wagetheft by contacting your state legislator to show support for Senate Bill 5050 and companion House Bill 1089.

Labor Report says Employers Steal More Than Bank Robbers

The Economic Policy Center (“EPI”) reports this week that more employers fail to provide full wages to employees.  When comparing 2008 U.S. Department of Labor statistics report of back wages to U.S. Census Bureau Data on bank robbery statistics, EPI reports wage theft amounts to triple the amounts stolen in bank robberies. The report is more anecdotal than statistically significant, however the broader report draws attention to the seriousness of wage theft. Read the entire report here.