Is After Hours Cell Phone, Email Usage Compensable Time?

Brazil has passed a new law requiring employees to be compensated for cell phone and e-mail use after work hours. The bill was signed by President Dilma Rousseff and is intended to combat the newfound problem of “overconnectivity.” In Brazil and around the world, workers are experiencing the feeling that they can never escape their jobs, as technology has made it possibly to be reached or complete job functions at any time of the day. According to ABC News, some companies may shut down servers after workers go home to prevent having to pay employees overtime.

Brazil’s cell phone usage is truly extraordinary, as Anatel, Brazil’s National Telecommunications Agency, reported that mobile phone subscribers recently exceed 210 million despite the country only having a population of 195 million. One labor attorney commented that "Virtually 24 hours a day, employees are connected to their phone or email, always at the disposition of their employer. It's technological slavery."

In the United States, the Fair Labor Standards Act (FLSA) sets strict requirements for overtime compensation. Under these laws, many workers may be entitled to receive overtime pay for their phone and internet usage outside of work hours. This is determined by an employee’s status with the employer as either “exempt” or “non-exempt.” While exempt employees may not receive overtime (including, for now at least, after-hours phone and e-mail usage), non-exempt employees may be able to receive overtime pay when forced to perform work functions after they return home. Even if an employer does not specifically require an employee to answer e-mails or correspondences after hours, the employee may still be eligible to receive overtime pay if the employer allows them to do so and if it is a regular occurrence.

Multiple lawsuits around the world, and one well-known class action suit by a Chicago police officer in the United States, have begun to change the dynamic of compensation for after-hours activities. While many employees in the U.S. are not currently eligible for payment for answering phones and e-mails after work hours, many non-exempt employees may be eligible. This is significant, as the FLSA guarantees that overtime pay be at least one-and-one-half times the normal rate of pay for every hour worked over 40 in a single workweek. If you are not being properly compensated for overtime work, contact a knowledgeable overtime lawyer to see if you might be able to pursue legal recourse.