Tuesday, April 22, 2008

Blackberry Overtime Claims?

Blackberry 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.



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» "Require that employees get permission first before using their BlackBerrys after work hours" from Overlawyered
Otherwise, the employer may just be setting itself up for wage-hour suits based on the premise that the after-hours use constitutes uncompensated overtime, says Mitch Danzig, "an attorney in the San Diego office of Boston-based... [Read More]

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Here's a twist: If an employer must add time at home spent with the pda, may the employer subtract time at work spent shopping on the web?

Posted by: Rick Bales | Apr 22, 2008 10:04:08 AM

I agree with Jeff: more interesting to me are the "white-collar" exemptions under the FLSA, since the employees most likely to be "on call after hours" via blackberry are the ones least protected from abuses of overtime. Although the revisions of the FLSA in 2004 have tightened who is considered "exempt," and so now I really wonder about the people I know who may not satisfy the 1) base salary, 2) duties exemptions. Although my research into organizational culture and behavioral econ explanations for why employees work in excess of their requirements (and do not take advantage of org family friendly policies) makes me wonder if anyone, in this recessive economy, will complain all that much about overtime. There's a huge culture of overtime in most white collar jobs, even those that are not exempt from FLSA restrictions.

So, more non-exempt employees may be affected, but will they complain and litigate, mobilizing their rights not to work? I don't know--the organizational studies out there tend to show that employees are largely compliant and accept the strong overtime culture of their organizations, even when it cuts into other competing demands such as family time.

Posted by: Dana Nguyen | Apr 22, 2008 11:11:39 AM

"makes me wonder if anyone, in this recessive economy, will complain all that much about overtime."

They can complaint *after* they're laid off. That's what underlies those behavioral studies: people don't want to rock the boat and risk losing their job since there is virtually no safety net in this country.

But when the economy goes down, they have less chance of getting a new job and are laid off, suing is one path to money, and they take it.

Posted by: jon | Apr 22, 2008 12:53:10 PM

I would normally agree that employees are too timid to make this an issue while employed, but what about the rise in class actions in this area? If a group of administrative assistants decide that they are being shortchanged then I think a collective action is more likely. The group approach also means the employer must be careful of violations of the NLRA in dealing with the group.
I think the plaintiff's bar will increase action in this area and that will make filing suit that much easier. Plaintiff attorney's already say this is as easy as catching fish in a barrel so I think we will see a rise in these suits despite an employer's many built in advantages.

Posted by: Jim McWhorter | Apr 24, 2008 8:44:30 AM

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