Second-Guessing Advice Columns: Texts After Boss’s Work Hours | Constangy, Brooks, Smith & Prophete, LLP


Those of you reading this blog will know that I have been a long-time fan of the label columnist Judith Martin, aka “Miss Manners”, in the Washington post. I’ve even been known to borrow his style for a few of my blog posts.

Sadly, Mrs. Martin is now handing over much of her column to her offspring, Nicholas and Jacobina, and – oh, my dear, I’m afraid it’s just not the same.

Either her or her kids anyway (I’ll blame the kids) committed a misstep last Saturday by responding to a letter that will be of interest to employers.

The author of the letter said his boss texted him about the work at all hours. “Eventually I started blocking it when I was pointing and unlocking it when I was pointing…. But I am. worried about being seen as a delinquent. . .. What is your advice? “

Not “excruciatingly correct”.
Just excruciating.

This letter didn’t ask me to, but I would have said it does exactly the right thing. She says she works hourly, which almost certainly means she is not exempt under the Fair Labor Standards Act. Her boss should thank her good stars that she waits until the next business day to respond to texts. Due to his good instinct, he will not one day be affected by a request for work outside of office hours.

“Did you get the text I sent you?”
I’m wondering because I haven’t heard from you, and it’s been five minutes now. “

But what did Miss Manners’ children say? First, they make no mention of the FLSA or working outside of working hours. Instead, they suggest that the author of the letter tell his boss,

“I am concerned that I am only available each week during the paid hours I am hired for. However, I would certainly be happy to discuss more extended paid employment if that is what you need.”

Yeah, that should work. Not.

First, if the author of the letter said this to her boss, she would likely be fired for insubordination. No one except a valet on Downton abbey speak this way without irony.

But more importantly, “Employee” is not equal to “not exempt”. For example, an administrative assistant usually receives a salary, but is not exempt either, which means that he is entitled to overtime for working more than 40 hours in a single work week. Thus, if the writer gives up her quiet evenings and mornings in exchange for a single “salary”, she will be ripped off. As some of the Miss Manners commentators have noted, the shift to just “pay” likely means the letter writer will have to respond to the boss’s after-hours text messages. . . and without benefiting from any additional remuneration.

And the boss won’t be safe either, because one day the letter writer might realize that she still isn’t exempt even though she paid a “salary”, and then she can slap him with it. a lawsuit for working outside of hours and unpaid overtime.

Not to be just an employee but in fact free of overtime under the “white collar” administrativeexecutiveprofessional exemptions, an employee must generally (1) be paid on a “salary basis,” (2) be paid at least the applicable minimum of $ 684 per week, and (3) pass so-called “job tests” For one of these exemptions. (A authentic practitioner of law or medicine, or a authentic teacher, can be paid by the hour and can earn less than $ 684 per week while remaining exempt.) Getting a “salary” is a good start on the path to exemption, but there is still a long way to go .

Miss Manners’ children also missed a great opportunity to warn supervisors and managers that their rudeness can have legal consequences and cost money. If they’re calling, emailing, or texting their non-exempt employees after working hours, and if the employees are reading and responding, that’s time worked, which almost * always has to be paid for. If that extra time puts employees at more than 40 hours a week, then they get time and a half.

“Dude. It’s 6 a.m.
The day of Christmas.”

Several “Miss Manners” commentators mentioned that supervisors often send e-mails or texts after work hours because they are afraid of forgetting if they wait until morning. I know from my own experience that this may be true. But here are some workarounds:

  • Write your message while you think about it, but save it in your “Drafts” folder until business hours.
  • Write your message while you think about it, but delay “sending” until business hours.
  • Write your message on a piece of paper while you think about it, put it in the pocket of the shirt you plan to wear to work the next day, then take the paper out of your pocket and talk to your assistant for hours of work. job.
  • Write your message on your hand as you think about it so you have it right there when you get to work. (Only downside – unless you’re using indelible ink, you might have to wait after you shower, and by then you might have forgotten what you meant.)
  • Write your message while you think about it and send it, but put in the subject line, “MAY WAIT UNTIL TOMORROW”. If it is an SMS, make it the first four words of the SMS.
  • Send a “note to yourself” in an application like Apple Reminders or Outlook Calendar. When you receive the alert the next day, you will remember to discuss it with your assistant.
  • Apologize to your assistant that you have the annoying habit of sending messages at any time of the day, that you don’t want to disturb her peace of mind. [or pay overtime], and that you would be very grateful if it blocked your messages and refrained from checking your emails during non-business hours.

Another tip for supervisors and managers: if you want to comply with the FLSA (and you should) beware of your top non-exempt employees. They’re the ones who are most likely to view overtime off the clock as “okay, happy to do it” and think it’s stupid and fussy to post every minute of work. Make sure they understand you really, not really, want them to post all the time they’re working, even if it’s only worth 15 minutes to read and respond to an email at 8 p.m. You may have to tell them a few times before they realize you are serious. (Bless their dedicated little hearts that play as a team.)

* In some jurisdictions, really insignificant working time – say, a few minutes – may not be paid.

THE MORAL OF THIS POSITION: Go to “Miss Manners” to find out if COVID is an excuse not to send handwritten thank you notes, but not for information on labor law. (Gee, she was so much better last summer.)

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