David C. Miller, partner with Bryant Miller Oliver.
David C. Miller, partner with Bryant Miller Oliver. (Courtesy photo)

For today’s U.S. workers, very often, a long-awaited vacation tends to become a “workation.” Although they have every intention of relaxing and enjoying their time away, many workers can’t resist the temptation to check their email, write that report, or answer work-related phone calls while on vacation.

A recent Rand Corp. study reported that almost 60 percent of respondents said they did at least some work while on vacation. Other researchers report that some employees view work as just another social outlet, and working as social engagement. For them, working while on vacation is a form of keeping in touch with friends.

This all may seem like gold for employers. An employee who is being paid not to work is willingly, maybe even happily, giving some of that time back to the company.

But, while it may glitter, this golden surface hides an ugly downside.

Suppose, for example, a vacationing employee decides to answer a few work emails from her smartphone—while driving. Is the employer vicariously liable to the other driver who is hurt in the resulting car crash? In Florida, an employer may be held responsible for damage from an employee’s negligent act, if it is committed within the scope of employment or during the course of employment and to further the employer’s interests.

Answering work-related emails may well be a function within the scope of the employee’s job, and the fact that she did it while ostensibly on vacation may carry little weight. If there is a pattern of vacationing employees “just checking the email” while on vacation, it could be that such behavior is occurring “during the course of employment;” it certainly furthers the employer’s interests.

Many people say they work while on vacation because they worry about the work piling up while they’re gone. So a vacationing employee decides to get a jump on that big report that’s due a week after he gets back to work. He spends a few days pounding away at a computer to get a few thousand words in the bank. But the ergonomics of the desk in the hotel room aren’t so great and what the go-getter gets is a flare-up of his carpal tunnel or his bulging disk issue.

There is Florida case law holding that injury occurring during work done while an employee is on vacation from his first employer, even work done for a second employer, may be compensable under the first employer’s worker’s compensation insurance if the work benefitted the first employer. It may even be an easier case when there is no second employer involved in that hotel room injury.

Federal law may also be implicated in an employee’s “workation.” Under the Fair Labor Standards Act, salaried employees who fit certain exemptions do not have to be paid overtime. They can be required to work more than 40 hours in a week and still be paid the same weekly salary. However, they are entitled to that salary even if they work only one hour in a week.

Suppose the employer is in a cash crunch and sends the exempt employee home for a week without pay to save the salary. Despite being told not to do so, the employee signs into the computer system and answers her email or does other work. If the amount of work is more than de minimis, she is owed her full salary for the week. There goes the cash savings.

Unlikely? No: This very scenario happened in the past few years to a large South Florida company whose furloughed employees couldn’t resist looking at their email. The company paid them for the week and then furloughed them for the following week—but, this time, locked them out of the system. The company lost two weeks of work for one week’s savings of pay.

So, before an employer accepts the “gift” of vacation time back from employees, he should think hard about whether that gift is coming wrapped in some ugly potential liability.