Under the Fair Labor Standards Act (FLSA), nonexempt, hourly employees are entitled to receive overtime at one-and-a-half times their regular rate of pay for all hours worked in excess of 40 in a workweek. When an employee comes in early or stays past their normal working hours, it’s not difficult to determine if they’re eligible for overtime.

Other situations aren’t as clear-cut, however. For example, with the rise in employees answering work-related emails or text messages after normal working hours, you may need to review your overtime and electronic communication policies.

After-Hours Emails

For many professionals, sending work emails after hours is part of their daily routine. An IT specialist may receive an email while out to dinner with family and step away to respond to the request. A manager may need to send text messages or make phone calls on a day off to handle an emergency. The problem occurs when work-related emails, texts or calls lead to a significant number of hours added to an employee’s workday without compensation. The FLSA requires nonexempt, hourly employees to be paid for time spent on emails and telephone calls, even when they’re not at the office. This is known as “off-the-clock” time. If an employee is “suffered or allowed” to perform work-related duties, they must be paid overtime for that work.

With the rise in employees answering work-related emails or text messages after normal working hours, you may need to review your overtime and electronic communication policies.

Overtime and After-Hours Email Policies

Some businesses are adopting policies that discourage employees from accessing email during non-business hours. Employees may be instructed not to connect to work emails from their personal devices, or you may choose to turn off email servers during hours employees are not supposed to be working. In some cases, businesses are developing stricter policies related to emails as a proactive measure should the DOL’s expanded overtime provisions take effect, while others are doing so to provide employees with the necessary downtime. In fact, enforcing limited access to email after hours may help to increase productivity and lead to more satisfied employees. If it is not possible to technically block work email, which could be the case with a smaller company, it is important to have written policies that outline when employees can access work emails. The policy should be distributed to all employees, with reminders that the company discourages after-hours texts or emails.

Remember: Under today’s guidelines, hourly employees must be compensated for any hours worked over 40 in a workweek and this includes work-related emails, texts and phone calls. Under guidelines that may take effect in 2016, even exempt employees may be eligible for overtime pay for hours worked over 40, which could lead to significant overtime costs for many employers. Therefore, developing a policy related to overtime and after-hours electronic communication is critical.