Being On The Blackberry Means Being On The Clock

Time spent by a non-exempt employee on a BlackBerry
must be included in calculating entitlement to overtime pay

Employers have been drawn to the near-instantaneous access a BlackBerry and similar wireless devices provide in reaching employees, customers, and client, but that constant access and connectivity may carry a hidden cost: a company may unwittingly be exposing itself to claims by non-exempt employees to overtime.

Time that employees spend on e-mails on a BlackBerry or other such similar wireless device constitute “time worked” under the wage and hour laws. Employers who fail to account for and pay an employee for his/her time spent on company business on a BlackBerry may be subject to significant overtime compensation and minimum wage claims. The greatest potential liability stems from non-exempt employees utilizing technology to work outside of normal working hours when the total of all hours worked exceeds 40 hours in a given work week. Under the provisions of the Fair Labor Standards Act (the “FLSA”), non-exempt employees must be paid overtime when they work more than 40 hours during the workweek.

For example, a non-exempt employee who works a 40-hour work week, who spends an additional seven hours reading and replying to work e-mails on a BlackBerry, has worked 47 hours – and is entitled to overtime for those additional 7 hours. What’s more, under the FLSA, “work” is not limited to work done solely at the request of or with the prior knowledge of the employer. Under the FLSA, it includes any and all work “suffered or permitted” by the employer. So, whenever an employee thumbs out e-mails on a BlackBerry entirely on his/her own initiative, the time spent is compensable.

Employers can be proactive in helping to minimize their risk of overtime claims or related litigation. Some of the options include:

• Conduct an internal FLSA audit. An employer should periodically audit job classifications to ensure employees are correctly classified as exempt or non-exempt. Keep in mind that a particular job title and/or being paid a salary does not guarantee an employee is exempt. FLSA regulations require evaluating the employee’s actual job duties (we can assist).
• No BlackBerry’s For Non-Exempt Employees. A prudent employer may not want to provide cell phones, laptops or wireless devices, like the BlackBerry, to non-exempt employees. Whether expressly encouraged by the employer or not, employees are inevitably going to use such devices to work outside of their normal workweek schedule. Such devices typically also create a reliable record of when and how long the employee used them, providing powerful evidence for employees who make claims for unpaid overtime. Their use may also encourage non-exempt employees to argue that they were “on call” and, therefore, entitled to additional compensation.
• Implement Policies and Procedures Regarding the Device. An employer should consider updating its Employee Handbook to establish a policy providing that non-exempt employees shall not perform any work outside their normal workweek schedule, unless expressly authorized to do so in writing in advance by a supervisor. In organizations where some emergency unscheduled work is unavoidable, employers should at least implement a policy that requires non-exempt employees to record and report such work as soon as possible. Such policies reduce the likelihood of employees claiming that the organization tacitly approved of or encouraged them to work on their BlackBerrys or other wireless device “off the clock” and failed to pay them for their time when they did so.

Employers may also want to consider other potential liability they be exposing themselves to by encouraging/requiring other aspects of Blackberry-type usage. For example, it is not improbable to expect someone injured in an accident caused by an employee-driver distracted by the use of a BlackBerry to name the driver’s employer as liable, especially if the employer provided the device. The importance of updating workplace policies to address proper usage of such devices – and ensuring employees are trained and sign acknowledgments of receipt of the revised Handbook, may prove critical to aid in the defense of such actions.

The BlackBerry and other wireless devices have become firmly engrained in modern workplace culture. While the device’s benefits are obvious, employers must gauge those benefits against the risks. An employer seeking to reduce potential unforeseen liability would be well-advised to understand the FLSA and re-evaluates its overtime policies and practices in relation to technological developments in the workplace and possible unforeseen liability.

The Schwarzberg & Associates Employment Law and Compliance Team has extensive experience in developing effective policies, procedures and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact one of our members; Steve Schwarzberg or Lisa Kohring at (561) 659-3300 to obtain more information about our firm and its various employment law compliance and defense services.