EMPLOYERS BEWARE.  Do your hourly employees send and receive work related emails or texts after their workshifts are over?  If so, your company may be in danger of becoming a defendant in the next wave of "wage and hour" lawsuits.

California has experienced a rash of wage and hour lawsuits.  These lawsuits, many of which are brought as class actions, involve claims of misclassifying employees as salary exempt, meal and rest break violations, and failure to pay overtime.  It is anticipated by many that the next big wave of class action lawsuits will revolve around employees' use of communications technology prior to or after a shift.  The following is a typical example of a company at risk.

Company employs fifteen customer service representatives ("Employees").  The Employees are non-exempt (hourly) employees.  Employees work 8 hours a day, Monday through Friday.  All Employees have "smart" phones.  Management customarily sends emails to Employees.  Customers of Company frequently send emails to Employees.  Employees frequently send emails and texts to other Employees.

If Employees are sending and receiving work-related texts and/or emails before 8 am or after 5 pm or on the weekends, they may be considered working.  If so, the law requires the Employees to be compensated.  In our example, if one Employee spent 1 hour on Saturday responding to emails from customers, Management and other Employers, he or she would be entitled to 1 hour of overtime compensation (i.e., 1 ½ times the hourly rate).

Now imagine that all Employees worked on average 1 hour on Saturday, and 10 minutes before and after every shift for the past 3 years.  The amount of overtime, interest, and penalties owed in this example could be devastating to a Company.

The attorneys at Navigato & Battin suggest all employers take affirmative steps, such as implementing restrictive policies, to protect against this looming class of lawsuits before they arise.  Navigato & Battin would be glad to assist your company create and implement protective workplace policies concerning the use of communications technology off the clock.