by Susannah L. Ashton

It is becoming more common for employees to have access to their work email on their personal or business-issued cell phone, and when an email chimes in after work hours, it is often hard to resist the almost-compulsive temptation to check the message. The question employers are often faced with is whether this time is compensable.

The current rule is that if a non-exempt employee spends more than a “de minimis” amount of time sending/receiving emails or texting off duty, the employee must be compensated for that time because it constitutes hours worked. While there is no precise amount of time that may be defined as de minimis, some courts have found daily periods of approximately 10 minutes de minimis unless the aggregate amount of time in a week spent checking emails or texting exceeds 10-12 minutes each day. Therefore, if an employee spends 10-12 minutes each day performing tasks like responding to email or texts remotely, and therefore spends 45 minutes to one hour per week performing such tasks, the time would likely be compensable hours worked and would not qualify as de minimis.

We are expecting clarification on the de minimis standard in a case that is currently pending before the California Supreme Court and will keep you updated.