Wage Law Still Runs on a Punch Clock. Work Doesn’t.

An employee closes her laptop at six p.m. After dinner, she answers a few work emails from the couch. A manager texts her a question after the kids are asleep. She responds when the phone buzzes on a Sunday, because answering is easier than having the conversation about why she didn’t.

None of this looks like “work” in the eyes of decades-old labor laws. There is no time clock, no factory whistle, and no supervisor watching the floor. Nonetheless, these activities are work tasks, and the people doing them are often not compensated for being perpetually available.

I spent the first part of my career on the other side of these disputes, defending employers in wage-and-hour litigation. That vantage point taught me how much leeway the law gives employers to take advantage of their workers – and why. 

The Law Still Thinks Work Happens in a Building

The legal tests that decide whether after-hours work must be paid were built for a world of punch clocks and physical workplaces. While technology has advanced quickly in the years since wage-and-hour protections took effect, the legal standards and tests remain largely the same.

When courts are asked to decide whether an employer must pay a worker for off-the-clock time, they look to established legal doctrines to interpret the laws:

• Whether an employer “suffered or permitted” the work to take place.
• Whether the time in question is too small or irregular to track with any precision (“de minimis”).

These made sense in their era, but they don’t apply cleanly to many modern work environments. Both frameworks were designed around physical tasks at a fixed worksite, such as the minutes spent changing into a uniform or walking to a workstation.

Attorneys still litigate wage-and-hour lawsuits under these doctrines. Courts are comfortable asking whether a task happened before or after a scheduled shift, whether it was required, whether it was too small to count, and whether the employer knew or should have known it was happening.

Although these questions are fair, they are awkward and insufficient for a workplace where unpaid work often involves text messages, Slack notifications, and emails answered from the couch. It is no longer just a few stray minutes at the edges of a shift inside a building. It is the steady, invisible availability that follows a worker home and never fully switches off.

Employer Control Is No Longer a Useful Test

A significant factor in whether an employer must pay a worker for their time is whether the worker was under the employer’s control. If a worker is waiting at the worksite for a task to begin, the answer is usually yes. If the worker is free to use their time as their own, the answer is usually no.

Now consider an employee whose work phone pings on her nightstand. She is not at the office. No one has told her she must respond at all hours. But she knows an email has arrived, and she knows what tends to happen to the people who don’t respond promptly. Is she under her employer’s control at that moment?

The honest answer is that the question no longer fits the facts. “Control” used to mean a worker’s physical presence. Now, it means “expectation,” and “expectation” is not a part of the traditional legal tests.

Other countries have established right-to-disconnect laws, establishing a hard line around after-hours contact. Since the United States does not appear to be headed in that direction, the existing legal system must close the gap. This means applying poorly fitting frameworks that predate the smartphone to problems created by the smartphone.

Why Both Employers and Employees Should Be Concerned

The uncertainty about what work is legally compensable cuts both ways. Tiny slices of unpaid work can add up to hundreds of unpaid hours. The stress of being always available can lead to employee discontent, burnout, and turnover.

Because the rules were written for a very different workplace, even employers acting in good faith have no clear guidance to ensure legal compliance. A company can adopt what seems to be a sensible after-hours policy and still be liable for wrongdoing, since no one can predict how a court will apply traditional wage-and-hour doctrines to modern facts.

Companies track when and where work happens in far more detail than they did a generation ago, which means the evidence and scrutiny of after-hours work increasingly exists whether anyone is looking at it or not. The electronic record grows more detailed every year, through login timestamps, badge data, message logs, and location history.

The workplace has changed, and the law should change alongside it. The courts deciding these cases, the lawyers litigating them, and the workers and employers affected by them are poorly served by a definition of work that assumes a building, a shift, and a clock on the wall.

Both the bench and the members of the bar must work together to close the gap. We need to update what we mean by compensable work, recognizing that the clock never really stops in many workplaces. Until we establish a new framework, the law will keep answering careful questions about booting up a desktop while the workday quietly follows everyone home. To arrange a free, confidential, no-obligation consultation, contact the employment law team at Sommers Schwartz, P.C.