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Off-Hours Texts to Employees = Big Overtime Liability

The Risk: How after-hours emails create costly wage issues


The line between work time and personal time has never been blurrier. As a manager, you might justify a late-night email with the idea that it'll only take your employee a few minutes to address. However, those "few minutes" open the door to major financial and legal consequences, especially when it comes to non-exempt workers.


Let's break down why the Fair Labor Standards Act (FLSA) is so important here:


Mental engagement counts: Even if your employee isn't typing a reply, the very act of thinking about a work issue during their off-time could be considered compensable work. For instance, a non-exempt retail worker gets a text at home about an unexpected inventory issue – even if they don't respond, the time they spend mulling over solutions might need to be paid.


De minimis doesn't always apply: There's a legal concept called "de minimis" that means an amount too small to matter. However, with modern technology tracking every interaction in detail, claiming that a 5-minute email check is "de minimis" is a long shot, potentially opening you up to back pay claims for overtime.


Pattern matters more than intent: Well-meaning managers might send the occasional after-hours message, but if it becomes a habit, that's where the real trouble lies. A pattern of off-the-clock communication creates a culture of expectation that employees are always available, blurring the line between work and personal life.


The Lawsuit: A Cautionary Tale from Publix


The Publix lawsuit underscores the risks. Consider these scenarios highlighted in the lawsuit:


Meal break interruptions: An assistant manager gets a text during their unpaid lunch about a customer complaint, taking 10 minutes to address it. Multiply that by a few times a week, and those minutes are now overtime hours the company owes.


"Voluntary" becomes not-so-voluntary: Employees are subtly pressured to check messages when they're off, even if not explicitly told to. This creates an environment where not staying connected feels like a career risk.


The Regulations: Get ready for changing overtime rules (and higher costs)


The DOL's proposed overtime changes make this a time bomb for many companies. Let's say you have an exempt supervisor, earning just under the new proposed threshold. Suddenly, they're non-exempt. All those seemingly harmless emails they send at night become overtime liability. Not accounting for these changes could blow your labor budget.


The Solution: Protect your company, respect your employees


Prevention is your best tool. Here's a detailed action plan:


Training beyond compliance: Cover the FLSA basics, but also delve into real-life scenarios and case studies to show managers how seemingly innocent communications can backfire.


Policy with teeth: Outline permissible after-hours contact reasons, consequences for managers who violate it, and a clear process for employees to report issues without fear of retaliation.


Technology to the rescue?: For some roles, consider "delayed send" features in email, or apps designed to schedule texts for work hours. This removes some of the temptation.


The takeaway: A late-night text might feel like efficiency, but the hidden costs are enormous. Damage to employee morale, legal exposure, and a culture where burnout thrives aren't worth it. By clearly defining boundaries and respecting employees' time, you create a healthier, more sustainable – and legally safer – workplace.


Speaking of respect, does that mean you should redirect all your after-hours texts and calls to EXEMPT employees? Absolutely not!


Unfortunately, many Exempt professionals have experienced getting calls, Slacks, Teams pings, and texts on Sunday nights at 9 PM “Hey, let’s touch base first thing in the AM. Maybe you can start thinking about BLAH BLAH BLAH.” We get it. It comes with a salary, plus or minus 40 hours. I’ve never seen the minus 40 but I hear it’s out there in writing somewhere.


When you are a top performer, after you think to yourself “Are you sh***ing me right now, I just sat down from a crazy weekend…” panic sets in. Because top performers always want to exceed expectations and come prepared. Similarly, when managers contact top performers on vacation with “I just have a quick question” a top performer will always reply and possibly miss much-deserved family and rest time.


So, for anyone who actually reads to the bottom of my blog post, PSA: Please don’t take advantage of your top performers. They really do care.


And, if you must message on off hours because you are a workaholic also, consider adding this message to the bottom of your email.


Please know that when you receive emails from me outside of standard working hours, it's a reflection of my work habits, not an expectation for you to respond immediately. Your well-being and work-life balance are incredibly important to me, so feel free to reply during your normal working hours.


This is respect and actions speak louder than words.


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