Keeping Your Employees In the Loop via Blackberry May Lead to Overtime Litigation

Employees’ Blackberry usage may prompt lawsuits. Claims for unpaid overtime wages have swept the country and put the nation’s biggest employers on high alert as the class-action craze shows no signs of slowing.

Blackberry Means FLSA Woes for Employers

The rapid growth of the PDA and Blackberry usage among employees may hit employers in the pocket book more than they think. These devices used to be just for lawyers, doctors, and executives. But, in today’s techno climate, even rank-and-file employees are using PDAs.

A great deal of this usage occurs after hours and on weekends. Is the time spent by an employee when checking and responding to e-mails and messages is compensable under the Fair Labor Standards Act (FLSA) and state wage laws.

The general rule is that non-exempt employees must be paid for all hours worked. The standard used to determine whether time is actually “hours worked” is whether the employee is “suffered or permitted to work.” An non-exempt employee who receives a company-provided PDA and uses it to respond or send work-related e-mails my have an argument that he or she should be paid for that time.

While some employers may balk at the notion of paying an employee for time responding to a few e-mails after hours, all of the time spent texting away may add up. Generally, an employee can claim up to two, and in many cases three, years of back overtime or wages. In addition, the FLSA provides a fairly easy mechanism to bring a class action lawsuit for overtime on behalf of similarly situated employees.

So far, there have been no wage-and-hour suits involving PDAs, but employers would be wise to review their policies regarding use of PDAs by non-exempt personnel. In particular, non-exempt employees should be instructed to report any work time spent using PDAs. And employers may even want to place limitations on when PDAs can be used after hours.

The Wall Street Journal Law Blog has a great post on this topic, “Are Blackberrys the Next Battleground in Wage-and-Hour Litigation”