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Contacting Employees After Hours May Come at a Price (Literally)

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The way we work today has evolved well beyond the scope of many of the laws we are currently operating within. It is important to recognize that the current laws on the books are ripe for change, or at the very least are likely to be interpreted differently in the future.

When you launch your own company, chances are you’re thinking about it every waking hour including nights, weekends and even while on vacation. It’s hard not to, as much is riding on your business success. With so much on your mind all the time, many entrepreneurs have turned to sending emails, text messages and even calling their team when a sudden burst of inspiration hits, ideas surface or forgotten tasks are suddenly remembered-often late in the evening and over the weekends.

The expectation of what happens next is currently being evaluated by our legal system and may lead to some sizeable class action lawsuits. “The lawsuits are starting to catch up to technology” says Nader Anise, Esq. “The crux of the issue that’s being decided right now in the courts is about overtime pay as part of the Fair Labor Standards Act. Are employees expected to be on call 24 hours a day, 7 days a week? What is the fair compensation model for employees when the line between work and personal time has been blurred?”

In a recent Wall Street Journal Article it was estimated that as much as 44% of employees use their phones to check work email and work-related text after hours. For many, having a smartphone by your side means you can instantly see who’s emailed, texted or called you about work-related issues and as part of a desire to deal with urgent issues in the moment, many employees get sucked into responding and dealing with requests long after the workday is done (assuming traditional office hours).

Work-Life Out of Balance
This all started innocently enough. As part of a desire for startups and “lean” companies to attract workers, many entrepreneurs began thinking differently about the traditional office setting. Traditional office hours at a physical office morphed into a productivity focused, “I don’t care where or when you work as long as you get your work done on time and within budget” attitude. This allowed for more employees to work from home, work non-traditional hours and leverage screen-sharing, video and other technology for impromptu collaboration.

Smartphones further blurred the lines between work and personal time. But what happens when the work keeps piling on and employees feel the pressure to work increasingly long hours just to keep up with the increasingly unrealistic expectations of individual productivity? If the traditional boundaries of “work” vs. “home” have been at least blurred and arguably eliminated, how does the employee ensure reasonable downtime to stop working and recharge his or her batteries?

The Legal Implications of After Hours Contact
As part of the Fair Labor Standards Act, Nader Anise explains, “Exempt workers are not eligible for overtime pay. The general definition of an exempt worker is someone who is a white-collar worker who earns more than $455 per week or $23,600 per year on a salary basis. If you make less than that, there’s a good chance you’re entitled to overtime pay. Of course, like all laws, there are exceptions to the rule and other factors that come into play.” And while this may not be an issue for you right now, there have been efforts by the Obama administration to increase these figures, raising this floor from $455 per week to potentially as much as $900 or $950 per week, or around $50,000 per year. If this regulation gets the green light, then there will be much broader implications and potential individual and class action lawsuits among unsuspecting entrepreneurs.

One Possible Solution: Setting Guidelines and Clear Expectations
In order to protect yourself and avoid potential class action lawsuits in the future, entrepreneurs must set clear guidelines, expectations and boundaries for their workers. For example, telling your employees that “Just because I sent you an email at 9:30pm doesn’t mean I expect you to answer it before tomorrow morning.” Better yet, develop policies and guidelines around after hour correspondence to get ahead of these issues.

“Ultimately, the new legislation being discussed and interpretation of the current laws could potentially be a big problem for entrepreneurs,” says Nader Anise. “The whole point of being small and nimble is to move quickly and get things done faster than the larger, more established businesses you are competing against. The purpose of the Fair Labor Standards Act was to prevent unfair working conditions; not to harm entrepreneurs.”

Regardless of final outcome in our legal system, it’s clear that the way we work today has evolved well beyond the scope of many of the laws we are currently operating within. It is important to recognize that the current laws on the books are ripe for change, or at the very least are likely to be interpreted differently in the future. If you haven’t spoken to your labor attorney in quite some time, it might be a good idea to spend some quality time reviewing your current business operations to identify potential exposure to problems before they become big problems and distract you from your core business. As Benjamin Franklin would say, “An ounce of prevention is worth a pound of cure.”

Avoid Prematurely Pulling the Fire Alarm
Please understand that I am by no means an alarmist. The Wall Street Journal articlegot my attention and I wanted to make sure you were aware of the potential legal implications of a highly common practice in small and growing companies. This may not be a big issue today, but there are all the signs that class action suits are being formed right now and, if successful, would have significant impact on the way we work-now and in the future.

Ultimately, this is about being aware of what’s happening now and taking the precautionary steps to be fair to your employees and respect their downtime-even if you yourself are obsessed about building the next great company in your industry and changing the world in an incredibly powerful way.

When you’re in that zone, time ceases to exist and your drive compels you to do whatever it takes. I get it. I’m living that passion and I have worked hard to pull in likeminded teammates who share my passion and vision. We just need to ensure we’re being emotionally intelligent around the needs of the people who have joined us on our quest to change the world.

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