Clocked Out, Still Connected: What You Need to Know About Group Texting Outside of Work Hours

“Quick question…”

Those two words have become increasingly popular as our near-constant attachment to communication devices blurs the line between work and personal time. 

Whether by phone, laptop, or tablet; via Slack, WhatsApp, or Google Chat, it’s easier than ever for teams to stay in contact after the workday is done. But employers need to be cautious about how they approach group conversations outside of the workplace. 

Not only will you need to ensure that your employees are clear on the standards for professional conduct within a group chat or text, but whether or not you have to pay employees for the time they spend messaging will depend on several factors, including the content of the messages, how much time is spent messaging, and whether the employees are classified as exempt from overtime considerations or not.

Although not all answers are completely black and white, this article is meant to help you navigate the gray areas and keep your practice compliant in the digital space.

Employer Responsibilities Related to Group Chat and Texts

From a legal standpoint, there is nothing preventing employers from engaging in group chats or texts with their employees. However, as a business owner or manager, you need to make sure that your team is clear on how they are expected to behave in a work chat. 

Explain the expectations for professional communication with your team and set guidelines for what can and cannot be discussed. Just like at the office, managers will need to:

• Watch for violations of workplace policies: Your work chat is a workplace. Therefore, all employees participating in a group text or chat should be expected to follow the same rules they do in the office. Think of your group chat as a second job location and type accordingly.
• Provide a safe workplace: As with in-person work, your employees will need to treat each other with respect in group chats and texts. Make it clear that bullying and harassment will not be tolerated.
• Address workplace concerns accordingly: Explain to your team that workplace concerns arising from the group chat should be brought to your attention and will be addressed according to your Employee Concern Policy just like concerns that come up in your office.
• Keep it professional: Sometimes employees can forget the expectations for decorum when chatting online. This can lead to inappropriate language or content being shared that may make some employees feel uncomfortable. Make sure your team is clear on expectations for what is and is not appropriate to share in your digital workspace.
• Protect patient PHI: HIPAA regulations still apply to electronic communications that take place after hours. Make sure your employees know they are not to discuss patient information in a group chat or text.

Legal Considerations Around Employee Chat and Texting

In addition to abiding by your office policies in a group chat, there are legal considerations that you’ll need to keep in mind relating to your team’s participation in work-related group chats and texts after they’ve left the office. They include:

The National Labor Relations Act (NLRA)

Just like in your office, the NLRA protects certain types of employee speech, including the right for employees to discuss their salaries and working conditions. 

Be careful not to stifle protected employee speech when setting guidelines for your team’s group chat.

Wage and Hours Laws

Here’s where things can get a little confusing. 

According to the Department of Labor (DOL), all of the time that your non-exempt employees spend working inside or outside the office must be tracked, paid, and included in overtime calculations. This includes anything more than “de minimis”, or minimal, time spent discussing work-related issues, as well as downtime during which an employee was considered “engaged to wait.”

More on this shortly.

Required vs. Not Required

Whether or not an employer has to pay for time that non-exempt employees spend chatting or texting comes down, in part, to whether or not the employee’s participation was required by the employer. 

One sticky point here is that simply saying that participation in a group conversation is “optional” doesn’t make it so. If, for instance, you send an “optional” work question to your team via group chat, but then express frustration to the team  the next day because no one responded, the employee will be able to make the case that participation in the chat was a requirement of their job duties, and that time spent in the group chat should therefore be paid according to the law. 

Similarly, if employees who do participate in an “optional” group chat are being given special rewards or consideration over those who do not participate, employees could make a legitimate case that participation in the group chat was actually a requirement of their job.

Even making it a requirement that your employees download a certain app to have access to a group chat or text could end up costing you. Requiring an employee to download a specific piece of software on their personal cell phone, tablet, or computer assumes that they have a device that will support that software. If they don’t, then requiring the employee to have the app means that you as their employer will have to provide the device for them. 

Social vs. Work-Related

If your employees are sharing social content via a group chat or text – memes, pictures of their pets, stories about their weekend activities, etc. – you are not required to pay for that time spent chatting or texting.

When it comes to work-related communications, however, employers need to be careful not to cross the threshold of “minimal” outreach in order to avoid having to track and pay employees for the time they spend in the thread.

Paid vs. Unpaid

Again, whether or not time employees spend in a group chat or text must be paid time comes down to the employee’s classification, whether their participation in the conversation is required (or can be construed as a requirement of their job), and whether their participation is purely social or is work related. Here are a few examples:

In these situations, compensation is not required:

• Texting employees who are classified as “exempt” from overtime requirements.
• Employee communication that is purely social, such as sharing about their weekend or sending pictures of their pets
  
• Asking an employee a quick question about their availability, e.g. “Can you work this Friday?”
• Quick reminders that are not related to the employee’s primary job, such as an announcement that you’ll be providing a team lunch or will be closed on Friday.
• Minimal time off and attendance requests, such as reaching out to an employee to see if they are able to cover a shift or to tell them their vacation request has been approved. Be careful! If this becomes a back-and-forth requiring employees to check in with peers, compare schedules, etc., such a conversation could cross the line of “de minimis” communication (or so an employee could argue).

In these situations, compensation is required when texting non-exempt employees:

• Asking employees to complete any sort of task on the spot, such as listening to an audio file, watching a video, or reading a document/article that relates to their job.
• Asking employees to engage in a conversation about anything work related, such as assigning duties, going over a problem that came up during the day, planning for the day to come, etc.
• Requiring employees to wait for a response from you. If, for instance, you text an employee and ask them to do something for you but they reply requesting more information to complete the task, the time that they spend waiting is considered time spent “engaged to wait” according to the DOL and the employee must be paid for that downtime.
• Performing additional work, even if you did not ask them to. Sometimes reaching out to an employee after hours will result in them performing additional tasks or work that you did not ask for at that moment. If an hourly employee works, according to the DOL, you must pay them.

Is there ever a time where I should avoid texting an employee?

An easy test for this is to ask yourself, “Is this message urgent?”. If the answer is “no”, consider waiting until the next workday to address it. Further, there are some situations where texting an employee should not happen at all. For example:

• While they are on an unpaid meal break: If an employee is clocked out for a meal break and then is required to do any additional work (even answering your text) during that break, that meal time must now be paid. Employees need to be entirely free from work activities during their unpaid meal breaks.
• When they are on protected leave: Regardless of the circumstances of the leave (personal or family related), do not text your employee when they are on a Leave of Absence. Doing so could come across as illegally interfering with an employee’s right to take leave. There is an exception to this rule, however, when the text is specifically about that employee’s leave, such as when you need to reach out to confirm their return-to-work date, send return-to-work paperwork, or verify that paperwork was received.
• When they are on vacation: There are several cases that show that interrupting time off negatively impacts employees. Interfering with an employee’s recharge time could reduce retention and engagement in your practice.

Avoid “Always-On” Syndrome

Where group texting can lead to unpaid wage claims for non-exempt employees, that is not the case for exempt employees. Still, your exempt employees need time away from work to relax and recharge, just like everyone else.

Texting your exempt employees excessively after hours won’t create a compensation issue, but it can lead to a feeling of always having to be “on”, which can lead to burnout. That said, you should avoid texting your exempt employees after hours as much as possible, except when it comes to emergency issues that simply can’t wait until the next business day to reach a resolution.

If an issue does arise that you want to cover with any employee but you want to make sure it doesn’t slip your mind before your team returns to the office, consider composing the text and scheduling it to go out sometime during the next workday. Or make a note in your message that an immediate response isn’t necessary and that you would be happy to circle back on the issue when everyone is back in the office.

Best Practices for Managers

As more and more group chat apps become available to keep teams connected, it’s important to be aware of your obligations as a manager or business owner, and to understand the types of conversations that might require you to compensate your non-exempt employees for their time. Here are some basic guidelines:

• Train your managers on how to use and monitor group chats and texts compliantly.
• Set clear expectations for your employees on how and how not to use the group chat.
• Stick to urgent messages – if the issue can wait until the next day, it probably should. 
• Keep work-related, off-hours chats short, simple, and compliant.
• If employees stray into a work discussion off hours, ask that they table the discussion until it can be discussed at work.

And, as always, If you have any questions about this topic or are unsure about how to keep compliant while group texting your team talk with an HR Expert or join the discussion in our private Facebook group, HR Base Camp.