In this age of ubiquitous communication, some people can’t seem to pry themselves away from a Blackberry keyboard, while others loath the dreadful pings and relentless LED notifications that invade their leisure time. Employees identifying with the latter group could find relief once state and federal courts begin to rule on a new class of long foreshadowed wage and hour litigation. Under the Fair Labor Standards Act and corresponding state labor regulations, they may be entitled to overtime pay if they spend a significant amount of time checking and responding to work-related emails on nights and weekends.

At first, mobile devices wecrackberry2re widely issued to executives, managers, and other employees who would be deemed “exempt” under the FLSA.  Exempt employees are precluded from bringing claims for insufficient overtime pay.  However, with the proliferation of mobile communication, more “non-exempt” employees working for hourly wages have been expected to faithfully utilize mobile devices after hours for work related tasks. Generally, when these employees work more than forty hours per week, they are entitled to overtime compensation.

With the first wave of overtime lawsuits relating to Blackberries and other PDA’s pending, the devices are likely to become as costly as they are productive. Back in August of 2010, a Sergeant for the Chicago Police Department filed a class action lawsuit on behalf of other officers who were issued mobile devices and required to access and respond to emails, calls, and other messages while off duty. The complaint alleges the Chicago Police Department “administered an unlawful compensation system that failed to provide hourly compensation and premium overtime” to officers for their “off the clock” Blackberry use. The case, Allen v. City of Chicago, is pending before the Northern Court of Illinois.

In Allen and other similar suits, courts will likely focus on whether the time spent checking mobile devices is de minimus and whether doing so qualifies as a “principle activity.” With regard to recording working time, the FLSA states that “insubstantial or insignificant periods of time beyond the scheduled working hours” that cannot practically be recorded accurately may not warrant compensation because they are de minimus. 29 CFR 785.49. In deciding whether to record an activity as work time warranting compensation, courts examine the duration and regularity of the activity, as well as the difficulty of recording it. Traditionally, an activity lasting ten minutes or less has been considered de minimus. Employers could stress the fact that sporadic email and text communication is practically impossible to measure accurately and that responding usually takes less than ten minutes. Plaintiffs will most likely characterize individual correspondences as one overarching obligation requiring a substantial amount of time.

Exactly when the workday begins and ends is another related issue that may have a prominent role in litigation. Section 790.6(a) of the FLSA defines the workday as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” One example of principal activities that define a work day is the “donning and doffing” of uniforms. If courts view communication via mobile devices as principal activities, then the traditional workday may be extended and plaintiffs will be entitled to compensation for this time.

Beleaguered police sergeants and sales representatives will have to wait in anticipation as Allen v. City of Chicago and other cases are decided. The emerging rules will affect different employees in distinct ways. Those who, as a matter of policy, are routinely forced to take part in lengthy correspondence relating to their principal duties as employees will be more likely to benefit from overtime pay than others who are merely hounded by supervisors with short text messages. Hopefully, the rulings will lead some employers to re-think their use of mobile devices; they could limit the amount of employees who receive them, or install software that dictates who can access company servers after work hours.

— Andrew Farrell

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