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Work blackberries equal overtime pay?

Ever wonder if checking your work blackberry should qualify as overtime work? Then you aren’t alone. Employees 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.

Sgt. Jeffery Allen of the Chicago police department has brought a law suit against the City of Chicago alleging that he is owed overtime pay for the time he spends checking his work blackberry and responding to emails.

At first, mobile devices were widely issued to executives, managers, and other employees who would be deemed “exempt” under the FLSA. These exempt employees are precluded from bringing claims for insufficient overtime pay. However now more “non-exempt” employees, working for hourly wages, have been now become expected to faithfully utilize mobile devices after hours for work related tasks.

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. 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.

Depending on the court’s ruling in this case, assuming of course that it doesn’t settle, employers may now have to consider more carefully which employees they issue these work blackberries to as the costs could be larger than they initially expected.

“I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million,” said Chicago Mayor Daley. Employers should now be more prudent in having agreements regarding work phones in writing to help protect themselves from unforeseen expenses connected to overtime pay. The attorneys at the Harman Firm are experienced in employers rights and can assist in drafting employment agreement.

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