Work-Related Social Media Activity As Compensable Working Time

A key issue in Des Moines overtime law cases is "working time," or how many hours each week an employee has worked.  If the worker's a nonexempt employee, any work over forty hours in a given week must be compensated at a rate of 150% of the employee's regular rate of pay. That sounds like a simple concept, but it's tricky in application. That's especially true in the internet age when people can be working even while at home and not tethered to a desk.   

The most common example of remote work done through the use of the internet is of course emails, the compensability of which I wrote about here. But some organizations require their employees to be active on social media as part of the employer's branding, marketing, or whatever. Some industries and businesses seem to want their employees to have a continuous interactive engagement with customers through social media. Facebook or Twitter posts with pictures or video, followed by responses to the comments that people inevitably post, that sort of thing. So should employees be paid for such work, given that it benefits the employer and cuts into the employee's free time?  I think so.

Federal law includes general guidelines to be used in determining what's compensable work and what isn't. Employers must pay employees for any activities taken on the employer's behalf regardless of where the occur. That includes activities primarily for the employer's benefit before or after the employee leaves the actual physical workplace if the employer knows or should no that the employee's activities are occurring. Also, the employee's activities must be principal activities or integral and indispensable to principal activities in order to count as work.

Overarching those principles is the United States Supreme Court's venerable definition of "work." Work is "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Exertion is not necessary for an activity to count as work.

Even if social media activities constitute working time, sometimes the amount of time engaged in work is so minimal, trivial, or "de minimis" that the time is not compensable. That's not because the courts believe that some work is minor that employee's shouldn't be paid for it. Rather, it's a recognition of the administrative difficulty for employers to track small or infrequent work time. Of course, that begs the question of what is too trivial an amount of time spent on work-related social media activities while at home or somewhere other than the physical employment location. Is fifteen minutes not compensable? What if it was fifteen minutes per day after work five times a week, or 2.5 hours per week? Is that enough to make the social media time compensable?

In conclusion, I think this topic fits into a larger issue that I'm seeing. That is, contrary to the Supreme Court's admonition that work is work even it doesn't require exertion, an increasing number of people consider remote internet work for an employer to not really be work. They're happy to do a little extra work for free after hours and after they've left the office because the internet makes that so easy. I guess if you're able to work on your smartphone while sitting at Starbucks, that's somehow less worthy of pay than if you're accomplishing the exact same task on a computer in an office building? But that viewpoint loses sight of the main work versus nonwork question, which is whether the employee's efforts primarily benefit the employer. If they do, then the employee deserves to be paid for that time regardless of how or where the work is being accomplished. Otherwise, the employee's giving a free benefit to the employer, a benefit that the employer should be paying for.

Harley Erbe