Beware the BlackBerry® in Non-Exempt Hands
It is generally common knowledge that employees who do not fall into one of the statutory exemptions to the overtime pay regulations (i.e. “non-exempt” employees) need to be paid for all of the time they work. What about those after-hour minutes checking e-mails and text messages on BlackBerrys® and other PDA devices? Actually, it is possible that employees should be paid for this work-related activity, even if it is occurring outside what would be considered to be normal working hours.
T-Mobile recently found this out the hard way when it was the recipient of a class-action lawsuit asserting claims for overtime wages. Among other assertions, the employees claim that they were required to review and respond to numerous “e-mails and text messages at all hours of the day and night.”
T-Mobile is not the first. AT&T Mobility was subject to a similar suit at the end of 2008 which is still on-going, and a Milwaukee office of property management firm CB Richard Ellis was sued by a maintenance worker earlier this year alleging that he was forced to work after hours without compensation for time spent on his BlackBerry®.
This topic is not new. In fact, a Yahoo! TECH blog post warned about such potential lawsuits over a year ago.
In an environment where so many non-exempt employees now use a myriad of hand-held devices to send and receive work-related e-mails, and where companies are expecting fewer employees to do the work of the former many, companies need to be mindful of the overtime pay requirements so that they do not become targets of such lawsuits as well. In short, if non-exempt employees are performing work, they need to be compensated for it. Companies are advised to review the time-keeping policies and after-hours communications policies they impose on non-exempt employees. In the long run, it will likely be less expensive to devise a time-keeping system and pay the employees for after-hours work, rather than defend against a class-action lawsuit.
