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.

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.

Amazon Ruling: No Overtime for Those 25-Minute Security Lines

This week, the United States Supreme Court unanimously ruled in Integrity Staffing Solutions, Inc. v. Busk that employees working warehouse jobs at Amazon were not to be paid overtime for post-shift wait lines that sometimes reached 25 minute delays.

Two workers, who filed the class action, alleged they were forced to wait through excessive security check lines following their shifts. The workers contended they should have been compensated for their time spent during these lines. The Ninth Circuit Court of Appeals ruled in favor of the employees before The Supreme Court reversed. The Court reasoned the security screenings were not “integral” to their jobs as employees primarily hired to pack and ship products to Amazon customers; the employees were not hired to walk through security lines.

This logic is distinguished from previous Supreme Court rulings where certain pre/post-shift activities were deemed compensable.  These have included time battery-plant employees spent showering and changing clothes because the chemicals in the plant were “toxic to human beings” [1] and time meatpacker employees spent sharpening their knives because dull knives would “slow down production” on the assembly line, “affect the appearance of the meat as well as the quality of the hides,” “cause waste,” and lead to “accidents.”[2]

The decision is a major loss for wage and hour advocates who believe in principal that all workers should be paid for their time from the moment they are required to be at work. Although the decision was unanimous and now current law, this is not likely the end of pre/post-shift litigation. Employers such as Amazon, armed with this new Supreme Court decision, might be even more emboldened to reduce security screening staffing, reducing costs, and increasing worker lines.

[1] Steiner v. Mitchell, 350 U. S. 247 (1956)

[2] Mitchell v. King Packing Co., 350 U.S. 260 (1956)

Paseo, The Workers, and The Sandwich Caught In-Between

Yesterday, hungry customers of beloved Paseo Restaurant in Seattle were met with a simple sign on restaurant doors reading

“Due to unfortunate circumstances, we are closing our doors. We appreciate all the support and loyalty you have shown us over the years. We will miss you. Thank you, The Paseo Crew.”

Paseo’s two restaurants in Fremont and Ballard, serving its famous cuban sandwich, have received national acclaim for its cheap eats cuisine and is a favorite among Seattleites.

However, local media, including the Puget Sound Business Journal, The Seattle Times, and The Stranger have reported on the possible reasons for the closing, namely, a lawsuit filed by four Paseo workers for unpaid overtime, rest-break violations, and alleged racial discrimination on September 14, 2014 in King County Superior Court (No. 14-2-24553-0 SEA). The complaint mainly alleges that employees were paid straight time wages for hours worked over 40 hours and not paid the additional 50% premium amounting to time-and-a-half. Non-exempt employees working over 40 hours per week, generally must be paid time-and-a-half their hourly rate under RCW 49.46.130.

As an attorney who regularly represents employees failing to receive wages and denied rest breaks inconsistent with the Washington Minimum Wage Act, Industrial Welfare Act and Federal Labor Standards Act, the Paseo workers’ claims, if true, are not uncommon in the restaurant industry.[1]

Workers who allege unpaid wages or denied rest breaks may file a claim at the Department of Labor & Industries or hire a private attorney. The "Dept. of L&I" may issue penalties and pressure businesses with threats to their licenses while private attorneys may seek recovery of the wages through the court system. Attorneys generally work on a contingency fee basis or recover attorneys’ fees from the other side if successful. This allows for low-wage workers to seek the services of a private attorney without the expense of hiring a lawyer by the hour.

Seattle has stepped-up efforts to address wage theft concerns by proposing new minimum-wage investigators in the Mayor’s new budget. The City of Tacoma is also making efforts to address wage theft by holding a Wage Theft Workshop for employees on November 20, 2014. For more information about the seminar, visit the City of Tacoma Human Rights Commission.

[1] See As Bad You Think It is, It’s Worse: Wage Theft Comes to America by Les Leopold published in the HUFFINGTON POST on November 11, 2014.

Sorry Kid, No Overtime for Movie Projectionists

Last week, the #1 article from Sunday's edition of The New York Times was an Op-Ed piece highlighting the antiquated Federal Labor Laws that exclude millions of workers from receiving potential overtime.

Movie Projectionists are excluded from overtime under RCW 49.46.130“Sorry kid,” movie projectionists are excluded from overtime under RCW 49.46.130

Under Federal law, employees holding perceived white-collar positions like supervisor, manager, even vice president may be exempt from overtime requirements, even though their gross hourly rate is less than $12 an hour. Even in Washington State, a forum recognized for its strong labor laws, there contains noted exceptions for “administrative” and “executive” positions. As a result, an hourly manager at McDonald's may not be entitled to overtime and other protections under the Washington State Minimum Wage Act “MWA”. Parallel exclusions under the Federal Labor Standards Act (“FLSA”) include country elevator workers, newspaper delivery persons, sugar processing employees, and radio station employees. Yes, even movie projectionists are exempt from the 40-hour overtime requirements. These and other provisions of the WMA are ripe to be updated to reflect the dramatic changes to today’s workforce.