A new French labor law went into effect with the new year, requiring employers and employees to negotiate over periods of after-hours time when employees do not have to respond to work e-mails. The law is now a requirement for employers with 50 or more employees. If the two sides are unable to agree on hours, then the employer must publish a charter that explains when employees are not required to respond. Reports explain that the motivation behind the law is to curb employee burnout.
While there is no similar requirement on the horizon in the United States (and this is not an argument for any law), should American employers consider such policies without the force of law? While anyone can debate whether the same or similar policies are a good match for any company’s respective culture to address burnout, there is a legal incentive driving state-side employers to adopt similar workplace policies: overtime.
An employer policy that excuses employees from responding to work e-mails during certain defined hours can help limit overtime costs for non-exempt employees. It’s worth reminding readers that individuals paid on a salary basis are not automatically exempt from state or federal overtime requirements once those individuals exceed 40 hours in a workweek. Salary employees must do certain things to meet the “job duties” factor of determining exemption. If salary, non-exempt (or hourly) employees are reviewing and responding to e-mails after hours, that is time for which the employer very likely should compensate the employee. And while the Fair Labor Standards Act includes a de minimis defense that arguably excuses compensation for very small periods of time, the Supreme Court has recently thrown water on that defense leaving employers to take a significant risk by relying on it.
While the new French law is unlikely to see any traction in the United States anytime soon, creative employers should always be on the lookout for ways to ensure compliance. While managers may routinely e-mail lower-ranking employees when an important thought comes to mind, that course of action may not always demand an after-hours response that increasing the recipient’s compensable time. If your business includes many individuals who are non-exempt from overtime and who have devices they take home to access work after hours, a policy similar to the French law may be a worthwhile consideration to make sure your company is not unexpectedly incurring overtime costs from employees.