Our nonexempt employees answer texts and calls after-hours. Is this work time and how much time would we pay for a 5-minute call, for example?
Yes, in most instances, answering short calls, texts, and emails would meet the definition of hours worked found in the Industrial Welfare Commission Orders, Section 2:
“Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”
De Minimis Time
These small increments of time are difficult to track and frequently are disregarded as “de minimis” time that is insignificant. In fact, the federal Fair Labor Standards Act allows employers to disregard small amounts of time as de minimis time. Disregarding these small increments is no longer advisable in California.
In 2018 the California Supreme Court held that the de minimis rule has not been adopted by California laws. According to the court, don’t allow employees to routinely work for minutes off the clock without being paid—because California labor laws require pay for “all hours worked.”
Even when the time is hard to track, time records should reflect all time worked, including any time worked after an employee’s regular hours. Develop a policy advising employees how to report all off-the-clock work time.
When it is not necessary that employees answer after-hours calls, employers may prohibit employees from working off the clock. Have a clear policy advising employees not to make calls or respond to any inquiries or to perform any off-the-clock work. It is good practice to train managers to refrain from contacting employees before or after their shift. Managers also should review time records and confirm that employees are following the policy.
When employees happen to work in violation of your policy, be sure to pay for the time, but disciplinary action is an option.
Consult with legal counsel about paying for small amounts of time worked beyond the regular schedule. Also review the helpful information in the timekeeping and recording guidelines on www.hrcalifornia.com.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.