If ‘Banker’s Hours’ Are Passé, How Will DOL’s Overtime Rules Apply?

Study finds many employees work outside established work hours

By Dana Wilkie Jul 27, 2015
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They used to be called “banker’s hours.” Now, the 9-to-5 workday is becoming a thing of the past, according to a new survey—and the Department of Labor’s (DOL) proposed overtime rules may make that a more expensive way to do business. 

The July 23, 2015, survey by CareerBuilder notes that 2 in 5 employees work outside of established office hours, while 1 in 4 report checking on work during activities with family and friends. Nearly two-thirds said that working 9 to 5 is an “outdated” concept. 

So are employees just fitting their eight-hour days into different time slots, or are they working earlier and later, and hence a longer day? 

“Many workers are probably putting in more hours by checking in before or after work hours,” said Mary Lorenz, corporate communications manager at CareerBuilder. “But some may very well be making up for lost time and productivity during the workday.” 

More workers would be eligible for overtime under the DOL’s proposed rules, which would extend overtime protections to nearly 5 million white-collar workers. Workers who earn as much as $970 a week—$50,440 a year—would have to be paid overtime even if they're classified as a manager or professional, according to the DOL. Under current regulations, the salary threshold is $23,660, or $455 per week. 

Age Differences

According to the survey, which canvassed more than 1,000 full-time workers between May 14 and June 3, 2015, nearly one-third of 18- to 24-year-olds work outside of office hours, compared to 50 percent of 45- to 54-year-olds and 38 percent of workers age 55 and older. More than half of those ages 18 to 24 check or respond to work e-mails outside of work hours, compared with 31 percent of 25- to 34-year-olds, 39 percent of 35- to 44-year-olds, and 46 percent of workers age 55 or older. 

The workers surveyed were employed in IT, financial services, sales, and professional and business services. 

One explanation for younger workers checking e-mail more outside the office than older workers, Lorenz said, is that the former are more likely to have embraced technology that provides them 24-hour access to the office. 

“Older workers, who entered the workforce before 24-hour access to the office was available, are likely accustomed to leaving work at work,” she said. “Having more work experience, and thus feeling more established in their roles and responsibilities, older workers may also have less anxiety surrounding work than their more inexperienced counterparts.”

Younger workers, however, are more likely to be earning below the proposed salary threshold and be eligible for overtime under the DOL rule change. In that case, employers will have only a few options, said Alex Passantino, an attorney with Seyfarth Shaw in Washington, D.C.

DOL’s Wage and Hour Division

“It’s either raise [salaries] and keep [employees] exempt, or don’t and make them nonexempt,” he said. “Within those options, there are numerous alternatives to address these costs: lower exempt incentive pay, lower exempt benefits to accommodate higher salary, reduce hourly wages to accommodate overtime and prohibit working more than 40 hours.” 

What’s likely to happen, Passantino said, is that “many Millennials will be reclassified to nonexempt status, which will require them to keep track of time [worked].” 

“They may get an hourly wage that is lower than what they are currently making to account for the anticipated overtime. This means that in weeks in which they do not work the expected number of hours, they will get less than they were making in the past.”

How Employers Should Respond

Michael Arnold, an attorney with Mintz Levin in New York City, said that federal wage and hour laws “lag behind technology and still live in the 9-to-5 world, causing many employers to grapple with the overtime problems that arise when these workers use their devices during after-hours.”

Where does that leave employers? 

“It depends,” Arnold said. “Some employers who don’t want to pay their workers more than the contemplated $50,000 threshold and want to minimize overtime costs will put stricter measures in place warning employees against working outside of regular working hours. Other employers whose business model may not allow for them to restrict employee use of mobile devices may be forced to meet the threshold or pay for overtime. Others may restructure job duties or hire additional workers to perform the same job in order to reduce or eliminate overtime costs.”

If employers do try to limit the workday, Arnold said, they should:

  • Have a clearly articulated policy regarding working authorized overtime.
  • Require employees to get authorization before working after hours and to record that time.
  • Inform employees that working unauthorized overtime will result in disciplinary action.
  • Discipline employees who do work unauthorized overtime. 

Passantino said employers must also consider that ambitious employees are likely to work off the clock. “It's just going to happen,” he said. “An employee who is trying to advance his or her career may just get [the work] done, notwithstanding an employer's prohibition on working overtime or working off the clock.”

Dana Wilkie is an online editor/manager for SHRM.

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