Media

Aren’t the best employees often those person who are willing to stay a few minutes late after work, or come in early to help get ready for the big event, or to help the night auditor finalize the books? Don’t we want to encourage employees who are willing check their email and answer the boss’ question at 8:45pm on a Friday night, even though the employee could just as easily put it off until Monday morning when he or she gets to work? Sure we do, but we can’t forget to pay them for their efforts. Over the last few years, lawsuits have begun popping up on courts around the country where employees are suing their employers for unpaid wages and overtime attributable to after-hours PDA use.

Two key issues must be considered when determining whether an employee must be paid for these efforts. First, is the activity considered to be de minimis? To determine whether time is de minimis, Courts look at three factors: (i) the practical administrative difficulty of recording the additional time; (ii) the aggregate amount of compensable time; and (iii) the regularity of the work. On the one hand, exchanging information before a shift was held to be de minimis given the circumstances of that particular case thereby relieving the employer of the obligation to pay wages during the period in question. To the contrary, it is now well established that employees must be paid for the time spent putting on a company-required uniform prior to the start of, or after, the employee’s shift.

The second consideration is whether the employee at issue is an exempt or non-exempt employee. Non-exempt employees, many of whom often have the title of “Assistant Manager,” must be paid overtime for all hours worked in excess of 40 in any single week. Many of these folks are all too eager to work after hours to make a good impression and to earn a promotion; however, unless they are exercising independent discretion, supervising other employees, and otherwise engaged in truly management level work, they need to be paid for all time spent working for the benefit of the employer, subject to the de minimis exception described above.

In sum, this is a rapidly developing area of the law and is highly fact intensive. Be assured that Plaintiffs’ attorneys are doing whatever they can to exploit this issue. When in doubt, it’s better to err on the side of a small additional payment to an employee for time spent after hours on company business.