Blackberry Overtime Claims?

The WSJ Law Blog (referencing a National Law Journal article (subscription required)) is asking whether Blackberrys and other PDAs may result in a new wave of wage-and-hour litigation.  The potential for overtime claims is obvious, as management lawyers have noted:

“We’ll see it; it’s only a matter of time,” said Jeremy Roth, a lawyer in the San Diego office of Littler Mendelson. Roth said he has cautioned several clients about the issue in the last year, advising them to get policies in place. Added Roth: “Before there was at least an argument that no, the employee is not being truthful when they say, ‘I did all this work after hours.’ But now, that swearing contest is taken out of the mix.”

So what should employers do? According to the story, some may want to require that employees get permission first before using their BlackBerrys after work hours, said Mitch Danzig, an attorney in the San Diego office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Danzig advises his clients to give BlackBerrys only to employees who are exempt from overtime laws.

There are a lot of people assigned PDAs by their employers, which will frequently raise the question whether some of the time spent on PDA is considered work.  This is particularly true given that technology is getting so advanced that PDAs are essentially small computers that can assist with a large number of tasks.  And given the rise in flexible work schedules, courts should become increasingly comfortable with the idea that time on a train can be just as productive as anywhere else.  However, my guess is that the FLSA overtime exemptions will eliminate a majority of employees using PDAs for work.  But, as the technology becomes more advanced and the cost of PDAs decrease, more non-exempt employees will be affected.

-JH