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Work-related blogging is compensable time.
Yesterday, I read the District of Hawaii opinion in Tagupa v. VIPdesk, Inc.. Tagupa worked for VIPdesk, a national concierge network, as part of its remote concierge team [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. At some point during her employment, VIPdesk asked Tagupa and others to volunteer blog posts to enhance its customer’s web sites.
Now, let’s stop right there. Catch your breath from laughing about the patheticness that is my TV watching, and also consider what the VIPdesk has asked Tagupa to do. She’s been asked to “volunteer” her time to assist in what is essential the company’s marketing/branding. Now, I’ve been around the block a few times on Fair Labor Standards Act issues, and this one smells awfully funny.
That is, the FLSA requires employers to pay its employees for all hours worked. 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. Just because I say that the sky is red, doesn’t change the fact that the sky is blue. Similarly, just because an employer asks for volunteers, doesn’t change the fact that work is work. And employees get paid for their work, especially when the employer knows or has reason to believe that an employee is performing work. Thus, VIPdesk may be on the hook for the time that Tagupa spent writing and researching for over 50 blog posts.
Other work-related social media may be compensable too.
Let’s take this a step further, does your business encourage employees to use LinkedIn to connect with actual and prospective customers? What about an employee who posts status updates and submits other short posts to LinkedIn to facilitate and maintain those connections. Is that time compensable under the FLSA?
Well, first, it depends on the whether the employee is exempt. If so, that employee probably gets paid a salary and is not eligible for overtime. But, if you encourage other non-exempt employees to devote significant time each week to LinkedIn and other business-related social media activities to support the company, those are hours worked for which employees should be compensated. Overall, that may be good for business. Just know that you’ll have to pay for it.
Otherwise, you’ll end up paying for it
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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