Monday, August 10, 2009
We posted last year about predictions of wage and hour claims involving employees' off-the-clock use of e-mail and cell phones. As a recent Wall Street Journal article notes, that prediction has come to fruition (note the irony in a cellular company being one of the defendants):
Last month, three current and former employees sued T-Mobile USA Inc., claiming they were required to use company-issued smart phones to respond to work messages after hours without pay.In a March suit, a former CB Richard Ellis Group Inc. maintenance worker seeks pay for time spent after hours receiving and responding to messages on a work-issued cellphone. . . .
The federal Fair Labor Standards Act says employees must be paid for work performed off the clock, even if the work was voluntary. When the law was passed in 1938, "work" was easy to define for hourly employees, said [Dan McCoy, an employment lawyer and partner at Fenwick & West LLP]. As the workplace changed, so did the rules for when workers should be paid. Subsequent court decisions have interpreted the law to require some hourly employees to be paid for putting on and taking off work uniforms, like police gear, and for time spent while booting up computers, said Audrey Mross, a partner and head of the labor and employment division at Munck Carter LLP in Dallas. . . .
With smart phones, which typically provide Internet access and email as well as voice calling, "the boundaries become much more permeable" and work is difficult to monitor, said Christina Banks, a senior lecturer at the University of California Berkeley and president of Lamorinda Consulting LLC. The use of pagers once raised similar issues. The Labor Department has said that workers generally don't have to be paid for carrying pagers, unless they get buzzed so often they can't use on-call time for "personal pursuits." . . .
The current and former T-Mobile employees say they were required to use company-issued smart phones to respond to work-related messages, including customer complaints, after hours without pay. When the workers reported the hours to management of the cellphone company, the lawsuit says, the employees were told nothing could be done and they should expect to work extra hours as part of T-Mobile's "standard business practices." . . .
In the CB Richard Ellis case, filed in U.S. District Court for the Eastern District of Wisconsin, John Rulli, a former maintenance worker for the commercial real-estate services company in Muskego, Wis., said he wasn't paid for after-hours time spent receiving and responding to messages on his cellphone. In the suit, Mr. Rulli said he was handcuffed to his phone because the company required him to quickly respond to messages at any hour.
Hat Tip: Barry Hirsch