Introduction
     As the personal computer and telecommunications revolutions continue to expand and accelerate, more employees perform more work or work-related activities at home for their employers. For example, many employees routinely use computers in their homes to access employer-sponsored e-mail systems, typically to send and receive work-related e-mail messages. Are such employees performing "work" for their employers when they do so? Should the time that such employees spend performing such telecommunication activities be counted as "hours worked" for wage and hour purposes, and must the employees be paid for such time? Does it make a difference if the employees are exempt or non-exempt?

     The Wage & Hour Regulations
     With regard to an employee's work at home, there are three federal wage and hour regulations of importance: 29 CFR §§785.11, 785.12, and 785.13. These regulations provide as follows:

     29 CFR §785.11 Employees "suffered or permitted" to work. "Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. [If] the employer knows or has reason to believe that he is continuing to work, the time is working time."

     29 CFR §785.12 Work performed away from the premises or job site. "The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked."

     29 CFR §785.13 Duty of management. "In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so."

     Exempt vs. Non-Exempt
     An employer is not required to pay overtime compensation to an exempt employee. Thus, with regard to the wage and hour requirements applicable to an employee's work at home for an employer, it makes a big difference whether the employee is exempt or non-exempt. If the employee is exempt, the employee's work at home will normally have no significant wage and hour consequences for the employer. If an employee is non-exempt, however, the employer will be required (1) to determine whether the employee's work-related activities performed at home constitute "work," (2) to keep an accurate record of the employee's "hours worked," including the employee's "hours worked" at home, and (3) to pay the employee any required overtime pay for the employee's "hours worked" at home. As more employees in various different types of jobs perform more work or work-related activities at home for their employers, more claims and issues may arise concerning the proper classification of the employees and their work-related activities at home. Employers will have to be very careful about (1) classifying employees as exempt supervisory, professional, or administrative employees, and (2) controlling and keeping track of employees' work-related activities performed at home.

     Examples
     1. An hourly-paid office clerical employee, on her own initiative and without being requested to do so, regularly "logs on" from her home to her employer's e-mail system to check her messages, which she usually responds to, and to send or forward messages or files to other employees. She does this just to "be efficient" and "stay up with things." Although some of the messages are personal in nature, the overwhelming bulk of the messages are work-related messages. The employee does not keep track of how much time she spends logged on to the employer's system, and she has never reported her "home log-on time" to the employer or asked for any payment for it. She has never discussed the matter with her supervisor. The employer has no written policy (other than a confidentiality policy) concerning employees logging on from their homes. The employee's supervisor has never addressed the employee's home e-mail activities, but the supervisor has, in fact, on many occasions received e-mail messages from the employee that were posted to the e-mail system outside of the employee's normal working hours. The employee's normal working hours total 40 hours per week. Analysis: An "hourly-paid office clerical employee" is not an exempt employee. The employee's home work-related e-mail activities are "work" for the benefit of the employer about which the employer knows or should know. The employer is required to keep track of and pay for the employee's home work time. The fact that the employer has not requested the employee to perform this type of home e-mail work is no defense to the employer, as stated in the regulations quoted above. The employer owes overtime pay (and liquidated damages?) to the employee for her overtime hours worked.

     2. An employer's mid-level, non-supervisor computer programmer regularly does work-related computer programming at home. She works at home on the same projects she works on at the employer's work premises. She works at home simply "to get the work done." The employee's supervisor never requested the employee to work at home, but the supervisor has been aware for some time of the employee's work at home, and occasionally the supervisor gives the employee some "comp time off" to compensate the employee for her work at home. The employee works a 40 hour week at the employer's work premises. The supervisor has no budget to pay the employee for her work at home, which the employee knows. The employee has never requested any payment for her work at home, but she has asked for some comp time off from time to time. Neither the employee nor the employer has kept an accurate record of the employee's hours worked at home. The employee probably averages about five to seven hours per week of programming work at home. The "comp time off" the employee has taken is far less than five to seven hours per week. Analysis: A "mid-level, non-supervisor computer programmer" is probably not an exempt employee. Such an employee is typically not exempt as either a "professional" or an "administrative" employee, regardless of how highly the employee is paid. Given that the programmer is probably not an exempt employee, it follows from the facts stated that the employee is probably entitled to a substantial amount of overtime compensation. If the employer does not want to incur such an overtime pay obligation, then the employer must strictly and clearly prohibit the employee from performing any work for the employer at the employee's home, and the employer must enforce that prohibition.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: January, 2000