A HWS referral partner who operates a nanny referral agency recently contacted our office with the following question:
"We have a client who expects her nanny to be available to receive and respond to text messages during the nanny’s “off” hours. Are there any laws to protect the nanny in this case? Also - should the nanny be paid for this time, and if so, what is the method of calculation?"
The quick answer is yes, this time the nanny spends reading and responding to "off" hour employer communications must be compensated. While these communications are typically incidential and neither party considers them intrusive, there are situations where the employer can definitely abuse the employee's expectation that she is off the clock and free from the need to be in regular communication with the employer. It is the latter situation that we are discussing here.
First, let's remember that a nanny, and other household employees, are classified as Non-Exempt under the Fair Labor Standards Act. What this means is that the nanny is an hourly employee, and protected by overtime and other labor laws.
If an employer requires non-exempt employees (the nanny) to perform work functions outside of work, such as responding to phone calls, emails, or text messages, that time must be compensated. The FLSA requires compensation even where the employer simply had reason to believe work was being performed after-hours. The FLSA is clear that when a non-exempt employee is "suffered or permitted" work, even if not explicitly directed, the time must be compensated.
The US Supreme Court in Lindow v. United States ruled that employers are not required to pay for irregular de minimus after-hours work - generally accepted as 10 minutes or less. The employer who on rare, irregular, occasions exchanges a brief series of texts or a phone call with the employee, where the length of time is de minimus and tracking this actual time spent imposes an administrative burden is generally permitted not to track and compensate for this time.
An employer who routinely exchanges multiple text messages, emails or phone calls with an employee during "off" hours however must be very careful to track and compensate for this time. Also, if any specific "off" hour communications take 10 minutes or more, even if it is a one-off situation, the employee is entitled to compensation.
Generally speaking employers will round employee compensible time to the nearest quarter hour. A nanny or other household employee should carefully and realistically account for the time spent responding to employer texts, emails and phone calls and add this to their time worked on their time sheet. Should the additional time result in overtime obligations, the employer must compensate accordingly.
