Over the weekend the Washington Post reported that France has enacted a new law that allows employees to ignore work emails outside typical working hours.   According to the Washington Post, the purpose behind the new French law is to reduce the impact of the stress of work on people’s personal time.  While the new French law received a lot of attention over the weekend, how to handle after hours emails is not a new issue.

In the United States employees are either exempt or nonexempt.  Nonexempt employees are entitled to overtime and minimum wage for all hours worked.  The Wall Street Journal reported here back in 2015 that there have been several lawsuits across the United States over whether nonexempt employees under the Fair Labor Standards Act who are answering emails or texts after working hours are entitled to compensation under the FLSA, including overtime in the appropriate circumstances.  Under the FLSA, compensable time is any time that the employee is “permitted” to work by the employer.  This means that if a nonexempt employee is answering emails after hours and the employer does nothing to stop it, then the nonexempt employee is working and entitled to compensation.  According to the Department of Labor, “time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done.”

The implications of allowing nonexempt employees to answer emails or texts after hours is that the employees have the right to expect to receive compensation for “all hours worked” at the applicable minimum wage, and to have the time spent answering emails or texts after hours included in the weekly total to determine whether the employees are entitled to overtime.  The practical problems for the employer with allowing employees to answer emails or texts after hours is that the time spent by employees is difficult to document and monitor.

As for all the exempt employees under the FLSA, these employees still may have to answer after hours emails and texts, or face whatever consequences may arise from not answering after hours emails or texts.  But even exempt employees may benefit from the DOL’s position on after hours emails when it comes to calculating compensation and deducting full days missed for personal reasons.  As a general rule, if an exempt employee performs any work during the workweek, he or she must be paid the full weekly salary amount.  Under the DOL’s position, an exempt employee answering emails could transform unpaid leave into paid leave.

France’s approach is to give the employees the right to ignore after hours emails.  In the United States nonexempt employees might be able to demand payment for the time spent answering after hours emails, and exempt employees might be able to claim that they were working to avoid a full day deduction.

If employers do not want to get caught up into whether answering after hours emails and texts constitutes work, they should implement very clear rules prohibiting employees from answering after hours emails and texts, and then strictly enforce those rules to avoid “permitting” nonexempt employees to work after hours.