Frequently we’ve had cases where employees with employee classifications have claimed they were hourly , non-exempt employees and that they were told that they need to respond to text messages and e-mails over the weekend. They’d complain, “Hey, wait a minute. You’re not paying me for the time that I worked on the weekend, and I need to get paid for that.” And they’re right.
If an employee is paid hourly and they’re doing work on the weekends, however small it is, they are supposed to be compensated for it. Modern technology makes it easy to figure out if someone was texting or emailing on a work-related matter in the middle of the night or over the weekend because there is going to be a record on their electronic device.
It is an extremely factually driven situation and usually we can figure out fairly quickly based on what the employee tells us. There may be documents that the employer has that show that the employer’s expectation was that the person was not going to be doing hourly-type work more than 50% of the time.
The regulation states the employer expectation has to be based on its reasonable expectations. In other words, if an employer trains managers and expects that they work more than 50% of their time on managerial work, and that expectation is grounded in some facts, then it is likely a reasonable expectation.
The employee, then, has to show that the employer had an unreasonable expectation about how often the manager would be doing non-managerial type work. That is another whole layer of facts that has to be gone through and evaluated. So, on all fronts, it requires factual analysis.
We’ve represented both sides on this issue – businesses accused of misclassifying its managers and employees who asserted they were misclassified. We’ve prosecuted representative matters on behalf of our employee clients and we’ve defended class actions on this issue as well.