New York State New Direct Deposit Rules Cancelled…For Now

For now New York State regulations which would have imposed new notice and consent standards for paying employees’ wages via direct deposit have been revoked. The regulations, which were set to go into effect March 7, 2017, were found to exceed the authority of the Department of Labor and were invalidated on that basis. The DOL has 60 days to appeal the determination.

Stay tuned for more info…

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Salary History Inquiries Now Prohibited in Philadelphia

Employers who do business in Philadelphia, take note! It is now illegal to ask job candidates in Philadelphia about their salary history. This means you cannot ask an applicant about his salary at his current job or past jobs. Many employers routinely seek this information from job seekers to help them determine what salary to offer the candidate. Opponents of this practice say it perpetuates a cycle of lower pay for women and minorities. Philadelphia follows Massachusetts in banning salary inquiries; last year Massachusetts became the first state to pass such a law.

The Philadelphia ban will become effective May 23, 2017.

Posted in Uncategorized | Tagged , , , , , , , | Leave a comment

Is Career Transition/Outplacement Services Right for Your Company?

The Great Recession of 2008 is not that far in our rear view mirror and its effects are still being felt by many employers.   Companies may find it necessary to realign themselves for the future by exercising different staffing techniques which may include downsizing, right-sizing, layoffs and terminations.  So how can a company navigate through these difficult actions and keep their company positioned for growth?

An experienced Career Transition provider can assist employers with messaging, ensuring business continuity, maintaining the employer brand and keep the remaining employee’s morale positive. The following are some benefits of utilizing Career Transition Services:

  • Terminated employees who receive Career Transition assistance are less likely to sue their employers for dismissal
  • Significantly lowers unemployment costs to the company as Career Transition increases the rate at which downsized employees get new jobs
  • Human Resources and management are not tied up assisting downsized employees with Career Transition coaching
  • It will protect your company’s brand and reputation
  • Remaining staff will feel less apprehensive about being laid off if they know they will get help finding their next opportunity
  • Helps keep morale of remaining staff positive
  • Protects your reputation as an employer of choice
  • Keeps client/public opinion positive

Add to this list one of the most important reasons to use Career Transition Services which is that it is the right thing to do.  Let’s take a look at this example:  you have an executive who has been with you for a long time but his skills are no longer relevant.  You know you have to terminate him but he has been a loyal employee.  By providing Career Transition Services you are providing valuable assistance to help him find his next opportunity – making the process speedier and less stressful than if he had to do it alone.  Likewise, HR professionals and Management often have to make the tough decision to lay off employees, through no fault of their own, due to a downturn in the business.

Whether your company needs to lay off many employees or terminate only one executive, PMP Career Transition Services can provide job search assistance in the following ways:

  1. Provide support to managers and Human Resources professionals on notification day
  2. Give emotional support and consultation on next steps to downsized employees on notification day
  3. Organize in-house job fairs
  4. Create and deliver customized Job Search workshops
  5. Give one-on-one Career Coaching including generational preferences, career changes, where and how to look for opportunities, resume construction, career assessments, interviewing skills and creating a brand on Linkedin. This can be provided in person or remotely.

Working with an experienced Career Transition Counseling during downsizing of employees can significantly improve the process for both the employer and their employees.  To quote one of PMP’s Career Transition Clients, “In using Mary Simmons for career transition services to help a group of employees we had to let go, I knew they would be in great hands and receive a wealth of knowledge and support.  They said it was a great help to have someone who would assist in resume writing, interviewing techniques, and aid in networking and her welcoming personality made the process a much more pleasant experience. Mary has quickly become my go-to person when it comes to Career Transition services.”


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at


This article is intended for general information only and should not be construed as legal advice.




Posted in Uncategorized | Tagged , , , , , , , | Leave a comment

Expected Changes to Workplace Laws Under President Trump – Part I

Though President Donald Trump has not yet stated in detail his plans with respect to labor and employment issues, it can reasonably be expected that his administration will upend current federal labor and employment law trends.  While former President Obama’s administration focused on a middle class economics agenda, it is likely that President Trump will pursue policies more friendly to businesses.

For the past eight years the Obama administration put in place employment regulations mainly through executive orders and administrative rulings.  That will provide President Trump and his administration significant opportunities to effect change and alter the workplace landscape at the federal level.  We can expect the Trump administration to scale back existing regulations which may influence state and local governments to do the same.

On February 24, 2017, President Trump issued an executive order entitled Enforcing the Regulatory Reform Agenda, which requires each federal agency to develop a regulatory reform task force to identify burdensome regulations for repeal, replacement, or modification.  Within 90 days the task forces are to evaluate regulations and issue recommendations.  While the executive order contains broad language, this could result in reform to various workplace regulations.

In Part I of this series, we take a look at anticipated changes at the Department of Labor (DOL) under President Trump.  We will examine potential changes at other federal agencies in our April newsletter (Part 2).

Nomination of Alex Acosta for Secretary of Labor

President Trump announced that he intends to nominate Alex Acosta as Secretary of Labor after Andrew Puzder withdrew his candidacy (as of this writing, Senate has not yet approved him).  Mr. Acosta was appointed to serve as a member of the National Labor Relations Board by President George W. Bush and served on the Board for about eight months.  Mr. Acosta has also served as Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice as well as U.S. Attorney for the Southern District of Florida, where he increased the office’s focus on white-collar crime.

At this point it is difficult to predict how Mr. Acosta would steer the DOL if confirmed by the Senate.  However, based on his background and brief NLRB stint, Mr. Acosta may advocate for increased agency rulemaking and more management-friendly positions on workplace regulations.

Department of Labor, Wage and Hour Division

The Obama administration issued a final rule toward the end of President Obama’s term that would have significantly altered overtime pay regulations and increased the minimum salary level for exempt employees.  However, the final rule was prevented from going into effect by a federal district court judge after various states and business groups challenged the rule.  The DOL, under new leadership, may withdraw the appeal or initiate the administrative process to alter the regulation.  Likewise, a republican-led Congress may pass legislation to invalidate the final rule.

The Obama DOL has also narrowed the definition of those who can be considered independent contractors while expanding the circumstances when businesses can be held as joint employers.  A Trump DOL may modify these interpretations to more business-friendly constructions.

Department of Labor, Office of Federal Contract Compliance Programs (OFCCP)

The OFCCP is the agency that oversees federal contractors and subcontractors, protects workers from discriminatory practices, and promotes diversity.  They ensure compliance with certain wage and discrimination laws specific to federal contractors and subcontractors.  The Obama administration was very active in OFCCP rulemaking.  President Trump may seek to modify or repeal the Fair Pay and Safe Workplaces executive order (a/k/a the “blacklisting” order). The order requires federal contractors (and subcontractors) to disclose past employment law violations and to provide wage statements that detail wages and hours to employees and independent contractors.  There is currently litigation pending to enjoin the final rule and Congressional republicans have introduced a joint resolution of disapproval to permanently block the final rule pursuant to the Congressional Review Act.

Among other things, the Trump administration may also seek to modify President Obama’s executive order raising the minimum wage for federal contractors to $10.20 on January 1, 2017, as well as an executive order requiring paid sick leave to employees working for federal contractors.

Department of Labor, Occupational Safety and Health Administration (OSHA)

There could be a number of changes to OSHA standards issued by President Obama’s administration such as modification of the new record-keeping rule requiring certain employers to file injury and illness information with the government by July 1, 2017 and thereafter on an annual basis, as well as the standard of proof for retaliation under many of OSHA’s whistleblower statutes.


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400.


This article is intended for general information only and should not be construed as legal advice.



Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Employers, Beware! Under FMLA “Parent” Is Interpreted Broadly – And It’s Your Job to Ask the Right Questions

Employers who are familiar with the Family and Medical Leave Act are well aware that employees can use FMLA leave to care for their child, spouse, or parent with a serious health condition. But not all employers are aware that, under the FMLA, “parent” is interpreted broadly to include not only biological, adoptive, step, and foster parents, but also any individual who stood in loco parentis to the employee when the employee was a child. Some employers are aware of this definition, but assume that it is the employee’s responsibility to inform the employer if he or she had an in loco parentis relationship to a family member now in need of care. Recently, one employer learned the hard way that, in fact, it is the employer’s obligation to find out, when an employee requests FMLA leave to care for a family member, whether the family member stood in loco parentis to the employee.

The Second Circuit Court of Appeals held in February that, where an employer had denied an employee’s request for leave to care for his sick grandfather, the employer should have first asked the employee if the grandfather had ever stood in loco parentis to him. (Coutard v. Mun. Credit Union, 2017 U.S. App. LEXIS 2322, *13 (2d Cir. 2017)).

In Coutard, the employee had asked for FMLA leave to care for his grandfather, who had a serious health condition. The employer denied the request on the grounds that FMLA does not apply to time off to care for a grandparent. The employee took time off to care for his grandfather anyway, and the employer fired him for his unexcused absence.

The employee had not mentioned to the employer that his grandfather had raised him from the ages of 3 to 14. Due to this relationship, the employee’s grandfather met the definition of an individual who stood in loco parentis to the employee when he was under 18. The employee sued, and the lower court found in favor of the employer, ruling that it had not been obligated to ask the employee whether his grandfather had ever stood in loco parentis to him.

The appellate court, however, reversed this decision, holding that it was in fact incumbent upon the employer to request additional information from the employee. In other words, before denying the leave request on the grounds that the seriously ill family member was a grandparent, not a parent, the employer should have followed up with the employee to ensure it had all the relevant information. Had it done so, the employer would have learned about the in loco parentis relationship and would have been obligated to grant the FMLA leave request.

There are two key takeaways here. The first is that, if there is any possible basis to believe that a family member with a serious health condition fits into any of the categories of family members covered under FMLA, it is the employer’s burden to dig deeper and get all the relevant information.  FMLA requests should not be treated as an exercise where employees simply check some boxes and the request is granted or denied. Employers must take a thoughtful, careful approach to these requests, bearing in mind that not every family fits into traditional ideas of what a family looks like.

The second takeaway is that any employer who is considering (a) denying an FMLA leave request or (b) taking adverse action (such as termination) against an employee who has previously requested or taken FMLA leave should always consult with counsel first. Employers who try to navigate the rocky waters of FMLA law alone do so at their own peril, as the employer in Coutard no doubt learned.

If you have questions about FMLA, please contact one of the HR professionals at PMP, who, if needed, can connect you with one of PMP’s affiliated employment attorneys.


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at

This article is intended for general information only and should not be construed as legal advice.


Posted in Uncategorized | Tagged , , , , , , | Leave a comment

When Cupid’s Arrow Strikes In The Workplace

Valentine’s Day is fast approaching, and love is in the air – including at the workplace. Workplace romance is very common; according to a 2015 survey, 37% of workers have dated a co-worker at some point. While many companies maintain written policies on workplace romance, there is no real consensus on the most effective approach. Some companies attempt to prohibit workplace dating altogether, while others seek only to prohibit supervisor-subordinate relationships. Other companies require employees who enter into romantic relationships with each other to sign a document stating the relationship is consensual and voluntary. Still others have no policy regarding workplace romances at all.

With so many competing approaches to choose from, it can be difficult for businesses to navigate the possibilities and decide on an appropriate policy. Below, we discuss a few of the more common approaches to workplace romance.

  1. “Love contracts”

Some companies require employees who enter into romantic relationships with each other to disclose the relationship to HR. Then both members of the couple must sign a document stating that he or she entered into the relationship voluntarily and without coercion, promising not to engage in any favoritism toward the other employee, and acknowledging the company’s rules regarding appropriate conduct. Such documents are colloquially known as “love contracts.”

The primary purpose of having an employee sign a love contract is to avoid claims of harassment or coercion that might be raised later when the relationship sours. But critics of love contract policies maintain that they have the unintended effect of encouraging employees to hide their romantic relationships. Clandestine relationships lend themselves more easily to allegations that the relationship was harassment-based than relationships that are conducted out the open.

  1. Fraternization policies

Some companies seek to totally prohibit workplace dating. Others take a less extreme approach, imposing some restrictions but not an outright ban. Both types of policies are generally known as “fraternization policies.”

While imposing an all-out ban on all workplace romances may seem attractive to some employers in its simplicity, it is unlikely to be effective. The reality of today’s economy is that many workers spend more time with their co-workers than with their families and friends. It is thus inevitable that attractions and romantic connections will form among employees. An outright ban is, therefore, unlikely to be successfully enforced, and a policy that cannot be enforced has no value to the employer.

For employers who wish to exert some control over the potential fall-out from workplace relationships, a more tailored approach is to prohibit some, but not all, romantic relationships. Commonly, romantic relationships between supervisors and their subordinates are prohibited, since such relationships may result in other employees making claims of favoritism toward the subordinate or, when the relationship ends, the subordinate claiming sexual harassment. Employers that prohibit supervisor-subordinate relationships should be vigilant in enforcing those policies, by taking appropriate action when such a relationship develops.

  1. Robust anti-sexual harassment policies

Many employers choose to forego maintaining a workplace romance policy, preferring instead to focus on preventing and addressing sexual harassment.  These employers may believe that, while they have no real control over employees’ romantic proclivities, they can control their own policies, procedures, and response to sexual harassment.

All employers should, of course, include a section on sexual harassment in their handbooks. These provisions should prohibit sexual harassment, explain what it is, and provide methods for employees to report it. But including such a provision in the handbook is the bare minimum, from a legal and HR standpoint. Taking a more proactive approach can go a long way toward limiting potential liability for sexual harassment. Holding regular training sessions, for example, is one way to enhance a claim that a company’s sexual harassment policy is substantive.  It is also helpful to allow employees to report harassment via several different avenues rather than, for instance, having them choose between only their supervisor (who may be the harasser) and upper management (who may be intimidating)). Ensuring that the policy is clearly and frequently communicated, rather than just another page in a handbook employees may never open, is another way to boost the effectiveness of these policies.

Employers concerned about office romances are well-advised to give their policies careful thought. While it is true that “the heart wants what the heart wants,” that does not mean that employers have no say when it comes to workplace romance. Adopting an appropriate, pragmatic workplace romance policy may well save an employer from future heartache.


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance.  Contact us at 800-921-2195 or 516-921-3400.

This article is intended for general information only and should not be construed as legal advice.



Posted in Uncategorized | Tagged , , , , , | Leave a comment

Coaching- Not Just For Sports

Coaching employees has been around since the 1980’s, but it was not until recently that companies and employees have begun to recognize its ability to develop leaders and give them an edge in today’s competitive business environment. A recent study commissioned by the American Management Association discovered that 57% of companies included in the study are using coaching now more than they did in the past. But what exactly is coaching and why would a company invest in it?

Coaching is a partnership between the coach and employee that is structured to produce positive results in the employee’s professional life; moving them from the ordinary to the extraordinary. The philosophy behind coaching is that an employee will be able to reach desired goals and improve in necessary areas faster and more efficiently by partnering with a coach. Just as for an elite athlete, coaching can enhance performance and personal awareness and drive change. Through goal setting, powerful questions, action plans, and other coaching tools, the coach helps foster solutions and strategies that support and enhance natural skills and abilities for a stellar employee.  Conversely, for an employee who is not meeting standards, a coach will guide them to improved performance so that company objectives are met.

Examples of why companies use coaching to improve Return on Investment (ROI):

  • Retaining high-potential employees
  • Training newly promoted supervisors and managers
  • Assisting laid off employees to gain employment quickly
  • Coaching millennials on workplace ethics
  • Improving productivity
  • Guiding management and business owners to reach company goals
  • Assisting problem employees to meet company standards

There are different types of coaching that can be beneficial to employees at different levels and phases in their careers. Career coaching assists individuals in moving to the next level in their professional careers and helps them find new opportunities during transition. Management/Supervisor coaching helps managers and supervisors better understand their roles while developing skills and strategies for success. Executive Coaching provides support to top-level C-suite executives, high-potential employees, and business owners to help them achieve their targeted goals. Coaching can also be used to correct negative behaviors when employees violate HR policies such as anti-discrimination and anti-harassment.

While companies are benefiting from coaching investments in their employees by seeing improvements in performance and productivity, individual employees are reaping benefits as well. Some of these benefits include meeting deliverables, improved leadership and management skills, support of company culture, enhanced communication with upper management, conflict resolution, career development, increased employee engagement, and higher retention rates. Coaches are able to work with employees to identify and clarify key business goals and establish effective management strategies to ensure that these goals are met. This one-on-one attention shows your employees that they are valued and provides dedication and motivation for them to continue to work hard for a common goal.

Coaching has been highly successful for businesses of all sizes and the individual employees as well. If you are looking to invest in your company or your individual career, coaching is an excellent option to consider. Through coaching, a more productive way to cultivate behavior that is consistent with desired goals will be explored in order to achieve strategic and operational success.


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter.  Please keep in mind that in addition to our staff of seasoned HR professionals, we also affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400.


This article is intended for general information only and should not be construed as legal advice.




Posted in Uncategorized | Tagged , , , , , | Leave a comment

New Year’s Resolutions for Employers

So, you’ve given up carbs, created a budget, and kicked your Facebook/Candy Crush/Starbucks/shopping /smoking/swearing habit. Good for you! But the new year is not just a time to clean up your act in your personal life. It’s also the perfect time to adopt better habits in your professional life, particularly if you are an employer.  To get you started, PMP has prepared this list of the top five new year’s resolutions for employers.

  1. Always Involve an Experienced HR Consultant or Counsel in Termination Decisions.

When you are considering firing an employee, it is crucial that you assess the facts from a legal/HR perspective. While you may be fully justified in your decision to terminate, there may be steps you should take before doing so. For example, if your company has a progressive discipline policy, adhering to that policy will help you defend the decision to terminate should a complaint arise. Also, if the employee has previously made a complaint involving discrimination, wage and hour issues, or other legal rights, then an HR professional or counsel can help you ensure that any termination decision will not be viewed as retaliatory. Thus, picking up the phone for a legal/HR assessment of any firing decision can help a company avoid significant liability in the future.

  1. Document Everything!

This resolution relates to Resolution No. 1 above. Any disciplinary act, incident of employee misconduct, or performance issue that may be relevant to a decision to terminate should be thoroughly and contemporaneously documented. It is not necessary to be overly formal in your documentation style; in many circumstances a simple email to the employee or to the file will suffice. It is also important to document requests for FMLA leave, other leaves, and religious or disability accommodation, as well as the company’s responses to such requests. Likewise, the employer’s response to any employee complaint about discrimination or the terms or conditions of employment must always be documented.

  1. Learn to Recognize and Respond Appropriately to Requests for Disability Accommodation, Religious Accommodation, and Family/Medical Leave

Building upon No. 2 above, it is important for employers to recognize an employee’s request to exercise legal rights when it is made. Employees need not use the words “family and medical leave” when making an FMLA request, for example. An employee might simply say, “Hey, I need to take some time off to take care of my mom while she recovers from surgery.” Supervisors must be trained to recognize and appropriately address such requests when they are made.

  1. Stop Retaliating. Period.

Employers generally are aware that retaliating against an employee for exercising legal rights is unlawful. But the ability to apply this general awareness to specific situations is another matter. Too often, employers engage in unlawful retaliation without realizing they are doing so. For instance, an employer might be angered that an employee publicly complained on Facebook about his pay, or about other conditions of his employment. Many employers in this situation will discipline or even terminate the employee, believing they have every right to do so to protect the company from further embarrassment. But in fact, the employee’s Facebook rant may well have been protected activity under the National Labor Relations Act. For another example:  an employee may complain that she was sexually harassed. Upon investigating the complaint, the employer may determine that there was no unlawful harassment. The employer might then decide to fire the complaining employee for making a false complaint. But the employee may be protected under the law from retaliation even if the complaint turned out to be without merit. This means that terminating the employee may constitute retaliation. To stay on the right side of retaliation law, employers should adhere to Resolution No. 1 above. And in addition to getting professional advice before terminating an employee, employers are well advised to seek such advice before engaging in any discipline short of termination if the employee has previously made a complaint or request that may be protected under the law.

  1. Be Consistent (Within Reason).

When granting or denying employees’ requests, disciplining employees, paying severance, or making a host of other decisions affecting employees, it is advisable to be as consistent as possible. Treating employees the same and according to well-communicated, easily understood rules and procedures can help employers avoid claims of discrimination based on race, religion, age, disability, or other protected class status. That being said, there are times when deviation from the norm is appropriate. For example, you may have offered severance to an employee you terminated six months ago, but the circumstances surrounding your latest termination decision – such as employee misconduct—may make you reluctant to offer this employee the same benefit.  Whether consistency is important in any given situation can be a tough call for employers to make. To avoid liability arising from inconsistent practices, consult with an HR professional or counsel before going rogue.


While not an exhaustive list of rules by any means, these resolutions are intended to put your business on the road toward legal compliance and liability avoidance in 2017. For additional help in this regard, contact PMP about its training programs, which are designed to give management the tools they need to comply with all five of the above resolutions and more. PMP is also available, together with its affiliated attorneys, to assist you with specific situations, provide guidance on best practices, and update your company’s employee handbook. Happy New Year! Contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at


This article is intended for general information only and should not be construed as legal advice.

Posted in Uncategorized | Leave a comment

Freelance Workers Must Have Written Contracts in New York City

Effective May 15, 2017, freelance workers in New York City will have new legal rights under the Freelance Isn’t Free Act (“FIFA”), a new law enacted by the New York City Council and signed by Mayor DeBlasio on November 16, 2016. FIFA provides that when a company retains the services of a freelancer for a value of $800 or greater, the freelancer must be given a written contract. The law is intended to make it easier for freelancers to collect payment for their services at the agreed-upon rate and in a timely manner.

FIFA defines “freelance worker” as any individual or an organization composed of no more than one individual that is retained as an independent contractor to provide services for compensation. This means that if your business retains the services of a vendor made up of more than one person, the engagement would not come under the Act. But if a business retains the services of a single person as an independent contractor rather than an employee, or a single-member LLC or a corporation comprising only one person, the engagement will be governed by FIFA.

Any written contract entered into under the new law must include the following information:

  • Name and address of freelance worker of the hiring party and the freelance worker;
  • An itemization of services to be provided, their value and the rate and method of compensation; and
  • The date on which payment will be made or the mechanism by which the payment date will be determined.

Regarding the timing of payments to freelancers, FIFA further provides that freelancers must be paid by the date stated in the contract or, if the date is unspecified, no later than 30 days after completion of the contracted-for services.

In addition, FIFA prohibits retaliation against a freelance worker for exercising his rights under the law, including by refusing to provide work to the freelancer in the future because the freelancer has done so. A freelancer may exercise his rights under FIFA by filing a complaint with the director of the office of labor standards and/or bringing a lawsuit, in which the freelancer may be awarded double damages as well as attorney fees.

Accordingly, businesses who in the past have enjoyed informal arrangements with freelancers must begin formalizing those arrangements starting May 15, 2017. However, the Act will not apply retroactively to arrangements entered into prior to that date.

Posted in Uncategorized | Leave a comment

Employee Responding to Emails at Home are “On the Clock”

A recently enacted French law giving employees a legal right to ignore work-related emails after office hours is attracting international attention. And no wonder! The obligation to check email in the evenings and on weekends has become so entrenched that the idea of being allowed to unplug seems nothing short of revolutionary.

Here in the U.S., there is no federal law directly addressing whether workers must answer work emails after hours. There are, however, laws mandating that all working time be compensated. For non-exempt employees—i.e., employees who are entitled to overtime compensation—this can create a tricky situation for employers. Employees may not be tracking the time they spend reading and responding to email outside of office hours. This can easily result in employer liability for unpaid overtime, even if the time spent on afterhours work is relatively short. For example, if a non-exempt employee who works 40 hours a week in the office also spends 20 minutes, three nights a week, answering emails from home, that employee is now working 41 hours per week and is entitled to time and a half for the 41st hour.

Unfortunately, some employers are under the impression that if an employee is answering emails after hours voluntarily, the time need not be compensated. In other words, these employers believe that if employees work from home at night not because they are required to but because they are ambitious and wish to seem accessible to their bosses, the time spent is not compensable. But that is not the case. All work must be compensated. And employers should bear in mind that email, by its nature, creates a written record of time worked. The exact amount of time spent may not be clear, but if an email was received and read at 9p.m. and a reply sent at 9:15p.m., a Department of Labor investigator might reasonably assume that the employee performed work for 15 minutes on the evening in question.

Accordingly, employers are well advised to maintain clear policies regarding after-hours work, including time spent answering emails, as well as clear policies regarding overtime. Employees should be instructed that all time spent working is to be included in their time sheets, regardless of when or where the work was performed, and regardless of whether it took five minutes or several hours. They should also be instructed that working overtime requires pre-approval from a supervisor. Likewise, supervisors should be directed not to send employees off-hours email unless truly necessary and, further, to be mindful of the extra hours it might cause the employee to work, possibly incurring overtime obligations.

Since it is unlikely that the U.S. will follow Frances’ example in banning after-hours work email any time soon, U.S. employers need to function within the reality of today’s workplace, whether that workplace is the office or an employee’s kitchen, commuter train, or any other place where they feel compelled to respond to that persistent ping in their pockets. Employers who understand this reality and create policies to address it lawfully and appropriately can avoid liability for unintended labor law violations.

Posted in Uncategorized | Leave a comment