Why Should Employers Have To Pay Overtime To Employees Who Only Worked Overtime Because They Played Fantasty Football Or Shopped Online During Regular Hours?

 By Michael Kun

At virtually every point in time, we have thought of ourselves as being technologically advanced. 

Older readers of this blog will recall the first time they ever saw a calculator.  It was the size of a paperback novel, it cost more than $100, and it was spectacular.  It was unfathomable that anyone would ever design anything more advanced.  Now, you can get a calculator at the checkout stand of your local supermarket for about $2.  And you will probably raise a few eyebrows if you buy one, if only because most people have no need for calculators.  They are built right into most laptop computers, tablets and smartphones – devices that only science fiction writers could possibly have dreamed of.

As a result of all of these technological advances, many employees work in front of a computer screen, and most have tiny computers in their shirt pockets, briefcases or purses at all times. 

In other words, most employees are no more than inches away from the internet, from email and from a phone at any moment during their working days. 

And employees cannot resist the temptation of those devices.  (How long was it after the introduction of the Blackberry before the first person referred to it as a “Crackberry”?)

How often have you been at a store, only to find the sales clerk off in a corner on a personal call on his or her smartphone, or checking emails?

How many times have you walked past a co-worker’s desk as he or she hurries to change the screen so you won’t see the fantasy football standings, or the webpage for a bookstore, or a social media site, or a lengthy exchange of emails with friends?  (Full disclosure: had you walked into my office 5 minutes ago, my browser was open to www.espn.com.  Specifically, the major league baseball page.)

Some employers have tried to minimize time spent in these activities by putting up firewalls on their computers.  What has this done?  It has led to discontented employees, who have just turned to using their smartphones for such activities.

Some employers have tried to put an end to time spent on smartphones at work.   What has been the result?  More discontent from employees, who take their smartphones to the restrooms or hallway.  While I personally can only attest to what I have observed in men’s rooms, I have little doubt that women’s rooms are quite similar -- people having personal telephone calls, often about exceedingly private matters, or clicking away on their smartphones, while others try to remain quiet or wait patiently to use the restroom for its intended purpose.  (I won’t comment on how downright weird it is for you to be talking to someone while you’re in the restroom other than to say that any time I get a call from someone and hear a flush in the background, everything he or she has just said immediately loses 20% of its value.  And I become much more cautious about discussing anything confidential with them when I know they are on a smartphone.)

While most employers try to minimize such personal activities, few have been able to stop it entirely.  And most understand the serious morale issues that would follow were they to try. 

Like it or not, employees are going to continue to use some work time each day on personal emails and calls, and on social media or the internet.

They’re going to continue to shop online when no one is looking.

They’re going to play fantasy football or fantasy baseball while they’re on the clock. 

They’re going to check their social media sites to see if someone has posted a new picture of a cat or shared the most recent “Which member of One Direction are you?” quiz.  (Full disclosure:  apparently, I am Harry.  Fuller disclosure: with a soon to be eight-year-old daughter, I know all of One Direction’s songs far too well and can actually name all of the band’s members – first and last names.  And feel free to quiz me on Taylor Swift or anything on the Disney Channel or Nickelodeon.)

Most employers understand all of this and, within reason, tolerate it.  It is a part of doing business in the second decade of the twenty-first century.

But it also raises a wage-hour issue that few employers think about:  if an employee has to work an additional hour of overtime because he spent an hour of the workday dealing with his fantasy football team, why should the employer have to pay for that time – and at an overtime rate, to boot?

 Why?

If you say, “Because the employee was on the employer’s premises,” try again.  An employer doesn’t have to pay an employee for all of the time he was on its premises.  If the law were otherwise, employees could grant themselves significant raises just by showing up for work a few hours early each day and reading the newspaper in the break room or taking a nap in a nice warm corner at the end of each day. 

And if you say, “The employer should have to pay because it didn’t catch the employee playing fantasy football, or shopping, or whatever,” ask yourself if that is what you really want – management standing over an employee’s shoulder all day or otherwise monitoring the employee’s ever workday activity to make sure the employee is not taking advantage.  You don’t want Big Brother in the workplace.  Don’t pretend you do. (A personal note: if you believe the reference to “Big Brother” relates to a TV show by that name, I’d encourage you to pick up the seminal George Orwell novel 1984, wherein the phrase was born.)

Practically speaking, this hypothetical – the employee who works an hour of overtime because he spent an hour on the clock playing fantasy football – speaks to the need for management to try to minimize such personal activities in a way that does not hurt employee morale.  The time spent on such entirely personal activities is costly, particularly where it leads to unnecessary overtime at overtime rates.  Every time the employee who makes $20 per hour spends an hour engaged in such personal activities, the employer has effectively paid him or her $20 for doing so.  And if they have to work an hour of overtime because they spent an hour playing fantasy football, that costs the employer an additional $30 – time-and-a-half of the employee’s regular rate. 

In other words, the employer has just paid the employee $30 to play fantasy football.  Or to shop.  Or to check Facebook. 

Where this really hits employers is in litigation.

We have written many times in this blog about the prevalence of wage-hour class actions and collective actions.  Many of them contend that employees were not paid for all of the time they worked.  Many claim that employees performed a few minutes of work before their shifts began, or after they ended.  They seek to be paid for an additional 10 minutes per day, or 15, or 20, or more.  And they seek statutory penalties.  And, always, attorney’s fees. 

But what if that same employee who contends he was shortchanged by 10 minutes of pay per day spent 30 minutes each day on social media, or shopping, or playing fantasy football, or exchanging personal emails?

Isn’t there something so clearly wrong about an employee who has been paid for engaging in personal activities turning around and seeking additional compensation under such circumstances?

Hasn’t that employee already been overpaid? 

Having had the pleasure of representing a great many companies in the defense of wage-hour class actions, I am always pleasantly surprised to see that most employers take a very realistic approach to the workplace, that they understand that employees probably spend some time engaging in these activities.

And I am often unpleasantly surprised to see how much time the people who sue spend in such activities, and how they believe it is their right to do so and to be paid for it – and to seek more money on top of it.

The employee who made thousands of personal telephone calls while on the clock still thinks she is entitled to more pay for a few minutes she claims she worked at the end of her shift.

The employee who regularly napped while being paid still thinks he should be paid more.

The employee who has his ugly fantasy football championship trophy on his desk forgets that his employer not only paid him for much of the time he spent earning that trophy, but had to pay him for overtime, too, because he didn’t get his work done during the business day. 

The employee who has box after box of merchandise shipped to the workplace thinks he is not only entitled to be paid for the time he spent online, but for more time.

In the litigation context, shouldn’t the time employees spend in personal activities be weighed against the additional time for which the employee is seeking recovery?

If an employee contends he or she was not paid for 6 minutes of off-the-clock work each day, but the employer can show that he or she spent 30 minutes a day engaged in personal activities, shouldn’t that employee recover nothing?

Very generally speaking, the courts haven’t weighed in on this issue yet. 

But someday, perhaps soon, they will.

And if they begin subtracting the time spent on personal activities on their smartphones or laptops from an employee’s claim the he or she was not paid for all of the time worked, they are likely going to find that many of the employees claiming they were underpaid were actually overpaid. 

That just makes sense, doesn’t it?

In this way, perhaps technology will meet its match in something that has been around for centuries – logic.