Published Article
Keeping Track of Employees’ Time Using Technology
Read Time: 4 minsEmployers have a duty to keep accurate records of their employees’ work time. Oh, it used to be so easy to keep track. Employees arrived at work and clocked in, and they clocked out at lunch and at the end of the day. If an employee clocked in late, employers could simply round that time out to the nearest quarter hour. Why it is so difficult now? Enter the world of smartphones, computers, and other modern technology.
A Second Here or There: De Minimus Doctrine for Tracking Time
In 1946, the U.S. Supreme Court issued a court decision discussing the de minimus doctrine when discussing timekeeping under the Fair Labor Standards Act (FLSA). The Supreme Court found that, in some cases, time is simply “too small” to capture and, therefore, an employer disregarding a few seconds or a few minutes of work beyond scheduled work hours would not violate the FLSA. After the Supreme Court acknowledged that some time is just too small to capture, the Department of Labor (DOL) issued regulations that indicated that “insubstantial periods of time beyond scheduled work hours … may be disregarded” when:
- There are practical administrative difficulties in precisely recording the time for payroll purposes;
- The time worked consists of “uncertain and indefinite periods of time involved of a few seconds or minutes duration;” and
- The employer is not arbitrarily “failing to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”
In the days when an employee merely clocked into work and immediately sat down at the IBM Selectric typewriter and started working, operating under these standards was straightforward. But what if the secretary now has to clock in through their computer, but it takes a few minutes for the computer to boot up? What about that text message a supervisor sent an employee last evening, to which the employee immediately provided a short response?
Since the Supreme Court’s acknowledgment of the de minimus doctrine, many courts have found these scenarios are exactly what the Supreme Court meant. The time for booting up that computer or sending a one word text message response was definitely too small to capture.
Modern Judicial Interpretation on Compensable Time Worked
But is it really too small to capture? Some courts are now saying “no” and are finding that, due to technology, these small amounts of time can be captured and, as such, are compensable working time. In one case, the Ninth Circuit found that employees’ time spent booting up their computers at a call center was compensable working time. The court focused on the fact that the employees could not actually perform any work because their primary duty was to answer calls – a task they could not perform until their computers were booted up. In a similar case, the U.S. Court of Appeals for the Tenth Circuit ruled that the time spent booting up computers was compensable working time. The court found that the time booting up their computer was compensable because it was an integral part of the employees’ job at a call center. The court specifically rejected the argument that the time was de minimus.
After Hours Compensable Time
Let’s shift our focus to other time employers may not realize they need to capture—employees responding to emails after hours. In a case from the Fifth Circuit, the court found that an employer knew or should have known that an employee was working long hours beyond his regular schedule while responding to emails or returning voicemails during his hour-long commute home.
The employee stated that he received approximately 250 work-related emails in a day and that he would sort through the emails to determine which ones needed his immediate attention and which ones he could handle later when he logged onto the company’s computer in the evening. When he responded to the emails, he always copied the company’s upper management team, including his direct supervisor and the general manager.
The court rejected the company’s argument that it should not be required to pay for this time because the company had a policy that employees had to report all time worked, and the employee in question did not report this time. What was the deciding factor here? The fact that the supervisor was well aware that the employee was responding to emails after hours (after all, the email had the time the employee sent the email), yet the supervisor made no effort to advise human resources (HR) or payroll of this fact. The two had even commiserated that this was the “company’s way.” In the court’s view, the employer was sitting back, letting the employee work after hours, and reaping the benefits of the employee’s work.
Some courts have been a little more employer-friendly. In a case involving the city of Chicago, the court found that the employer was not required to compensate employees for their time responding to messages through their Blackberries. The court noted that the employer required employees to report any after-hours work through the use of a “slip,” and the employees never reported this time through the “slip.” Given the employees’ failure to report, the court found that the employer neither knew nor should have known that the employees were working after hours. (The court here didn’t discuss whether the employer should have known of the after-hours work due to the time the messages were sent. It is likely that the parties never raised this issue before the court.)
The bottom line here is that while technology has made our lives easier, it has also created a lot of headaches. Litigation over these issues is increasing at an alarming rate. Employers need to be very cautious about refusing to pay time by deeming it de minimus or because the employee didn’t follow procedures for reporting all after-hours work (especially if the supervisor was aware of after-hours activity.)
Reprinted with permission from The Legal Intelligencer.