Over-Time Pay For Reading E-mail on Your Blackberry at Home

Jeffrey M. Schlossberg (Adjunct Professor of Law, Hofstra Law School and Partner, Ruskin, Moscou and Fatischek) and Associate KImberly B. Malerba just published an interesting article in the May 21, 2007 supplement to the New York Law Journal entitled " Tech-Toch" Download 052107labor1.pdf They address the novel issue of whether employee time spent away from the office using technology such as Black Berry devices, cell phones and lap tops could lead to claims that such employees are entitled to overtime pay under the Fair Labor Standards Act of 1938.

They note that many employers provide these devices with the hidden assumption that employees will use them during off work hours to perform work. As the authors explain, time worked for FLSA purposes, includes work done at home. If the employer knows or has reason to believe that the employee is performing such work, it is compensable. The authors suggest that employers adopt clear policies and procedures on use of technology away from the office as this might provide a defense to an over-time claim brought by an employee. The authors also point out that the FLSA has a regulation which states that de Minimis time does not have to be reimbursed.

Unfortunately, most of us lawyers do not have to worry about whether we are entitled to over-time pay. Most lawyers are probably going to be considered "exempt" employees under the FLSA so our employers have no obligation to pay over-time. The most common exemptions are for executives, administrative employees and professionals. The authors also briefly discuss exemptions under the FLSA.

Mitchell H. Rubinstein