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Is Your California Company at Risk for Overtime Liability?

Thanks to cell phones, laptops, and other mobile devices, communication between employers and employees is just a few clicks away. Because of how pervasive a presence smart technology has in our lives, it is easy to assume that even if you send an email at 9 p.m. on a Friday night, it will be read within the hour; if you send a text message, it will be read within the minute. Your assumptions would not be too far off. According to OneReach, 90% of all text messages are read in under three minutes, have a 98% open rate, and see a 45% response rate; according to EmailMonday, emails received on a mobile device are responded to within just 28 minutes, while those received on a tablet or desktop are responded to within 57 to 62 minutes. No matter how you send your communication, it is bound to get read in a timely fashion. Which is a good thing, right?

Not so much. Technology has made it too easy for us to communicate with our employers and employees, and as such, it has created an entirely new legal issue that employers must be weary of. If you are a Pleasanton, California employer, and if you make it a habit of contacting your employees after hours, you may find yourself charged with overtime violations for failing to adequately track and compensate an employee for all of the work they do while away from work.

Overtime Under the Fair Labor Standards Act 

Under the Fair Labor Standards Act (FLSA), an employer is required to pay all non-exempt employees for work performed, whether or not that work was requested, or merely “suffered or permitted.” Under this rule, an employee must be compensated for any time that they spend performing work-related duties, even if they voluntarily check in early and check out late. Or even if they voluntarily answer a work-related text message, call, or email while off the clock. If the employee in question has put in a 40 hour work week in the office and continues to answer emails during the evening hours and on the weekend, that employee is owed overtime pay, which is one and half times their normal rate of pay.

Who is Eligible for Overtime Pay?

Currently, salaried employees who earn more than $23,660 a year are exempt from overtime pay. This low threshold has saved countless employers billions of dollars over the years, especially as emailing and text messaging amongst upper management during the evenings and throughout the weekends has become the norm. However, as of December 1 of this year, the salary threshold at which white collar workers are exempt from overtime pay has been nearly doubled, to $47,476. This makes an additional 4.2 million salaried employees eligible for overtime pay (U.S. Department of Labor). This puts thousands of U.S. employers at risk for violating overtime laws.

Eliminate the Risk 

There are steps that you can take to eliminate the risk for overtime violations as a California employer. For instance, you can implement a policy that addresses work performed outside of normal business hours by non-exempt employees. This policy could either request that all non-exempt employees refrain from engaging in any “off the clock work,” such as fulfilling what may just be a small request made via email on a Thursday evening. No matter how small the request may seem, if it even takes five minutes of an employee’s time, it should be recorded and therefore paid.

Secondly, the policy could prohibit non-exempt employees from performing any work-related duties outside of their normal work schedule entirely—including responding to an email, text message, or phone call from upper management.

Another measure you can take is to restrict access to company accounts outside of the workplace entirely. Company accounts can include email accounts, online management systems, Google Drive, and the like.

Consult a Pleasanton Employment Attorney 

At Garcia & Gurney, ALC, our Pleasanton employment lawyers strive to help employers in the Pleasanton, Alameda, and Contra Costa areas remain compliant with the ever-evolving employment laws. Our legal associates can help you create and implement an overtime policy that will eliminate any risk of overtime violations. To consult with an employment attorney today, contact our law firm at 925-468-0400.


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