Are your employees working off the clock? Here's why that could be costly.

You are the CEO of a business. You are always too busy, never seem to get everything done during normal work hours, and are on your cell phone or email 24/7.

Your employees are always connected and several are very anxious to please you and to get ahead.

You pick up your cell phone in the evening and call one of them to check on the status of tomorrow's project. You talk for 30 minutes. She says she will have everything you discussed done by start of the day tomorrow. Does this have any effect on her pay?

You email or text the person who sends in your payroll regarding a change to the payroll that is due tomorrow. Does it matter if it is 2 in the afternoon or 9 in the evening when you send the email or text? Does it matter whether he needs-or you expect him-to respond right away?


First, know an employee's status under wage hour law. An exempt employee meets duties and salary requirements to be exempt from minimum wage and overtime pay. Key to this determination is not title or position description but what the employee actually does. Improperly classifying employees as exempt can be a very costly error.

So, is the employee working on the project or preparing the payroll an exempt employee?

If yes, the employee can work as many hours a week as needed to get the job done and receive no additional pay.

If no, the employee is a non-exempt employee and must be paid for all hours worked plus time-and-a-half over 40 hours in a work week.


Keep a record of all hours worked not only during normal work hours but also outside of normal work hours, i.e. all those phone calls made or answered, emails or texts sent or read, and projects worked on.

You protest:

It was only a few minutes. A few minutes once a week might be de minimus, or too little to count, but longer periods of time and or more frequent occurrences won't be. Also, if no records are kept, how will you prove the amount of time?

You didn't tell the employee to finish the project or respond to your email that night. If you have a policy instructing workers-or you told them-not to work outside normal work hours, you can discipline them for doing so. But be careful-next time they may not respond.

The employees said they didn't mind, they were happy to take the call, answer the email, or finish the project on their own time. As a private employer, you have no volunteers. If you know or have reason to know work is being performed, a non-exempt employee must be paid.

Risks of not paying include a labor department audit or employee lawsuits-individually or collectively. All of which can be very costly-wages owed doubled and for a period going back two to three years plus attorneys' fees and costs.


An off-duty employee takes your call on her cell phone while she is driving and gets into an accident, raising issues with workers' compensation and insurance coverage for property damage or injury. Additional complications can arise if the employee is on FMLA leave or out on disability.


Decide: Do you want or need non-exempt employees to perform work outside normal work hours?

Implement your decision: Develop policies and procedures addressing such work and also distracted driving. Educate your managers about the impact of such contacts with non-exempt employees or any employee while on FMLA or disability.

Beware: With today's technology, the worksite is anywhere and everywhere and your employees may be working 24/7, whether you know it or not.

Elizabeth M. Stanton is a partner at Taft Stettinius & Hollister LLP.