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Legal Updates & Alerts

BlackBerry Use and Overtime Laws: the Lawsuits Have Started

April 20, 2011
By Blerina Kotori

Thinking about giving a BlackBerry or an iPhone to your employees? Think again. As the lines between business hours and private lives become blurred by always-there-technology, employers are facing new challenges in administering wage and hour laws for hourly employees. A recent decision from Chicago sheds light on this new style of "timesheets," indicating that courts will not easily dismiss claims by employees for unpaid overtime for checking work emails outside of working hours.

The Chicago case, Allen v. City of Chicago, 2011 WL 941383 (N.D.Ill. March 15, 2011), resulted from a police sergeant, Jeffrey Allen, who sued the City of Chicago for violations of the Federal Labor Standards Act, 29 U.S.C. §201, et seq ("FLSA"). Allen claimed that the City did not pay him overtime for the time he spent checking his email while off-duty. The City had issued "personal data assistants" ("PDAs") or other electronic devices to employees. According to Allen, while off duty, he received numerous telephone calls, emails, voice mails, and text messages on his PDA and was expected to respond. The City moved to dismiss Allen's complaint based partially on the theory that any time Allen spent on his PDA off-duty was de miminis and did not require compensation under the FLSA. The court denied the City's motion to dismiss, holding that Allen had stated a claim for violations of the FLSA.

Although the case is still in litigation, this initial ruling is significant for employers. Because it is one of the first cases dealing with this issue, the ruling will undoubtedly be cited by plaintiff's attorneys and may influence other courts facing the same issue for the first time. Moreover, the ruling confirms that employers may expose themselves to liability if they do not compensate hourly employees for time spent on the BlackBerry. This decision further emphasizes the importance of developing tight policies that deal with the employees' use of electronic devices.

What should you do to stay ahead of the curve? First, make sure you give BlackBerries only to those employees that really need them to do their jobs. These are ordinarily salaried employees. However, hourly employees may also end up with BlackBerries such as assistants or information technology support employees. Employers must decide if the advantages of having employees "on call" electronically outweigh the cost of monitoring work outside of the office and potential overtime pay for that work.

Second, you should require hourly employees to record the time that they spend using BlackBerries for work outside of regular office hours and pay them for what they record. When employees are responsible for recording their own work time, an employee's failure to record time spent on emails outside of work may be considered an admission that the BlackBerry use was personal rather than work related. Of course, because email is written evidence, an employer may not be able to avoid paying overtime even if the employee did not record the time. Indeed, if an employer is receiving emails from hourly employees after hours or over weekends, the employer will have a hard time denying that it was on notice of overtime work.

Third, you should develop an overtime policy that addresses the use of BlackBerries after hours. The policy should address all aspects of using electronic devices from personal email and record keeping to mandatory hours when the employee should turn the device off. You should make sure that the policy complies with state wage and hour laws as well as with state meal and rest periods laws (so that employees are not interrupting this time to do work).

For more information about this Labor & Employment update, please contact Blerina Kotori at blerina.kotori@tonkon.com or 503.802.2055.