Second-Guessing The Advice Columns: After-Hours Texts From The Boss

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Miss Manners should stick to writing about ice cream forks.

Those of you who read this blog know that I am a longtime fan of the etiquette columnist Judith Martin, aka "Miss Manners," in the Washington Post. I have even been known to borrow her style for a few of my blog posts.

Unfortunately, Ms. Martin is handing over much of her column now to her progeny, Nicholas and Jacobina, and -- oh, dear, I'm afraid it just isn't the same.

Anyway, either she or her kids (I'm gonna blame the kids) committed a faux pas last Saturday in responding to a letter that will be of interest to employers.
 

The letter writer said that her boss texts her about work at all hours. "Eventually, I started blocking him as I clocked out and unblocking him as I clocked in . . .. But I'm worried about being considered delinquent . . .. What is your advice?"

Not "excruciatingly correct."
Just excruciating.

This letter writer didn't ask me, but I would have said that she is doing exactly the right thing. She says she's hourly, which almost certainly means non-exempt under the Fair Labor Standards Act. Her boss should thank his lucky stars that she waits until the next business day to respond to the texts. Because of her good instincts, he won't someday be hit with an off-clock work claim.

"Did you get that 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' kids say? First, they make no mention at all of the FLSA, or off-clock work. Instead, they suggest that the letter writer tell her boss,

"I am afraid that I am only available each week during the paid hours for which I am contracted. However, I would certainly be happy to discuss more extended, salaried employment if that is what you require."

Yeah, that should work. Not.

First, if the letter writer actually said this to her boss, she would probably be fired for insubordination. Nobody except a valet on Downton Abbey talks this way unironically.

But more importantly, "salaried" does not equal "non-exempt." For example, an administrative assistant is usually paid a salary but is also non-exempt, meaning he or she is entitled to overtime pay for working more than 40 hours in a single workweek. Thus, if the letter writer gives up her quiet evenings and mornings in exchange for only a "salary," she will be getting ripped off. As some of Miss Manners' commenters noted, switching to a mere "salary" probably means that the letter writer will be expected to answer the boss's after-hours texts . . . and without the benefit of any extra pay.

And the boss won't be safe, either, because someday the letter writer might realize that she's still non-exempt even though she's paid a "salary," and then she can sock him with a lawsuit for off-clock work and unpaid overtime.

To be not just salaried but actually exempt from overtime under the "white-collar" administrative-executive-professional exemptions, an employee must generally (1) be paid on a "salary basis," (2) be paid at least the applicable minimum of $684 a week, and (3) satisfy what are called the "duties tests" for one of these exemptions. (A bona fide practitioner of law or medicine, or a bona fide teacher, can be paid by the hour and can earn less than $684 a week while staying exempt.) Getting a "salary" is a good start on the road to exemption, but there's still a long way to go.

Miss Manners's kids also missed a lovely opportunity to warn supervisors and managers that their uncouthness can have legal consequences and cost money. If they call, email, or text their non-exempt employees after hours, and if the employees read and reply, that is time worked, which almost* always has to be paid. If that extra time puts the employees over 40 hours for the week, then they get time and a half.

"Dude. It's 6 a.m.
On Christmas Day."

Several commenters to the "Miss Manners" column mentioned that supervisors often send emails or texts after hours because they're afraid they'll forget if they wait until morning. I know from my own experience that this can be true. But here are a few work-arounds:

  • Write your message while you're thinking about it, but save it to your "Drafts" folder until business hours.
  • Write your message while you're thinking about it, but delay the "send" until business hours.
  • Write your message on a sheet of paper while you're thinking about it, put it in the pocket of the shirt you plan to wear to work the next day, and pull the paper out of your pocket and talk to your assistant about it during business hours.
  • Write your message on your hand while you're thinking about it so you'll have it right there when you get to work. (Only downside -- unless you use indelible ink, you may have to wait until after you take your shower, and by then you may have forgotten what you wanted to say.)
  • Write your message while you're thinking about it and send it, but put in the Subject line, "CAN WAIT UNTIL TOMORROW." If it's a text, make that the first four words of the text message.
  • Send a "note to self" in an app like Apple Reminders or Outlook calendar. When you get the alert the next day, you will remember to discuss it with your assistant.
  • Apologetically tell your assistant that you have an unfortunate habit of sending messages at any hour, that you have no desire to disturb her peace [or pay overtime], and that you would be most grateful if she blocked your messages and refrained from checking email during non-working hours.

One other tip for supervisors and managers: If you want to comply with the FLSA (and you should), beware of your very best non-exempt employees. They're the ones who are most likely to consider extra off-clock time to be "no big deal, glad to do it" and to think it's silly and nitpicky to post every minute of work. Make sure they understand that you really, no really, want them to post all the time that they work, even if it's only 15 minutes' worth to read and reply to an email at 8 p.m. You may have to tell them this a few times before they realize you are serious. (Bless their dedicated, team-playing little hearts.)

*In some jurisdictions, work time that is truly trivial -- say, a couple of minutes -- may not have to be paid.

THE MORAL OF THIS POST: Go to "Miss Manners" to find out whether COVID is an excuse for failing to send handwritten thank-you notes, but not for employment law information. (Gee, she was so much better last summer.)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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