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Surgeons and the police aren’t the only people who are expected to be on call 24 hours a day anymore. With the increasing proliferation of personal wireless devices meted out for business purposes � such as BlackBerrys, cell phones and notebooks � there is a growing threat that employees who abuse such technology will grow resentful and decide to take legal action against their employers. Possible claims could include dependency, stress-related illnesses and carpal tunnel syndrome. Additionally, employers must be concerned about overtime pay claims by nonexempt employees, proactively defending against employees seeking recompense for time supposedly spent working while off the clock. These claims could arise under the Federal Fair Labor Standards Act or state wage-and-hour laws. The ways in which work and technology currently commingle in the modern workplace are very important considerations for a company’s human resources department. To prevent future monetary claims, a company should be on guard before problems occur. These issues will only become more pressing as the new millennium continues, and those who wish to be prepared will take action now, by creating tailored policies and procedures for the employer’s particular circumstances with the aid of knowledgeable counsel. According to a new study by Gayle Porter, an associate professor of management at Rutgers University, employers could incur liability for stress-related illnesses by keeping their employees on “electronic leashes” as part of the requirements for maintaining their job, or advancing in the workplace. Porter theorizes that employers may be responsible for supposed physical and psychological fallout that occurs due to what she has called “potential dependency.” The phenomenon of “workaholism,” of course, is nothing new. In Japan, the theory of “karoshi,” or “death-by-overwork,” has recently resulted in demands for compensation in the form of lawsuits by the relatives of deceased employees. The stress of constant labor has been linked by some studies to numerous maladies, including strokes, heart attacks and mental illness. While a person simply carrying an employer-provided wireless device is not actually performing any duties, the argument plaintiffs’ attorneys may make is that the perception employees may have of being tied to the office is equally psychologically damaging. It is important that companies who require their employees to stay wirelessly connected think about this subject, then put appropriate policies in place, train employees and prepare for disgruntled employees or spouses claiming an invasion of their personal lives by technology. At the forefront of the discussion is the BlackBerry wireless device. The BlackBerry, developed by Research in Motion in 1999, is a wireless handheld device with the capacity to check e-mail and surf the Internet. Its portability makes it very attractive to companies who wish to disseminate information to roaming employees in real time. Many companies issue such devices to employees as part of their “tools,” hoping to encourage increased connectivity and actually to lower stress by allowing employees to keep tabs on projects while traveling or at home. While the technology was first targeted toward those in specialized business situations that already require considerable amounts of time and dedication, the technology is rapidly trickling down to many more employees. Portable wireless devices could soon be as ubiquitous in the business world as the cell phone. The difference is, however, that the wireless device actually allows employees to get a broad range of work done � not just stay in touch. So where is the line drawn between being at work and not being at work? Can employers be held responsible if their employees choose to abuse a privilege and an otherwise neutral piece of information technology? Porter’s thesis is that the onus of responsibility lies with the employer, where silence on the issue is supposedly a tacit command for longer hours and constant availability. Which is precisely why employers must take action now, before problems based on such theories can arise. The BlackBerry and other PDAs can be used for many personal applications, as well as business-related enterprises. Many employees choose to check their BlackBerry constantly without any employer requirement to do so, viewing their new mobile power as a badge of status. This decision is much more an “employee’s” choice to use a new method of maintaining access to an attractive, useful, powerful electronic world rather than an employer-caused addiction.
While a person simply carrying an em-ployer-provided wireless device is not ac-tually performing any duties, the argument plaintiffs’ attorneys may make is that the perception employees may have of being tied to the office is equally psychologically damaging.

A more serious issue that may arise from the prevalence of wireless devices is the threat of nonexempt employees seeking compensation for time worked while off the clock. In other words, an employee may claim he was working because he read e-mail messages on a wireless device during nonworking hours. To evaluate this risk, it is imperative to know who is, and who is not, exempt under the Department of Labor’s updated rules as well as to know how DOL defines “working time.” The new “standard” salary-basis test applies to the so-called “EAP” exemptions for executive, administrative and professional employees who are paid a guaranteed salary of least $455/week ($23,660/year) and satisfy the requirements for at least one of the duties tests. $455/week is the magic number if the duties test is met. These employee salaries can’t vary with the quantity or the quality of each week’s work or the DOL holds that the exemption is lost, except for lawyers, doctors, teachers and certain motion picture industry workers. If any EAP employee falls below the new salary requirement, employers must pay them overtime for any hours over 40 they worked in a week. Of course, if an employee meets at least one of the duties tests for exemption, employers can simply raise the employee’s salary to $455/week (or more) before a problem arises and thereby fall within the exemption. The “executive exemption” is available under the new rules if the employee’s primary duty involves managing a business, directing two or more subordinates, and hiring or firing other employees. Also, any employee involved in management who has at least a 20 percent equity interest in the business can be considered exempt, even if the employee isn’t paid on a salary basis. The “administrative exemption” is available if the employee’s primary duty relates to management or general business operations and requires discretion and independent judgment about “matters of significance.” Importantly, this new rule doesn’t require an employee to exercise independent judgment on a consistent basis, although the employee must show some indication of judgment at vital moments of decision. The “professional exemption” is available if the employee’s primary duty involves performing work that involves some specialized knowledge generally acquired through a 4-year college degree. This usually means that the work must be varied, intellectual and consistently involve the use of judgment, as opposed to the occasional exercise of independent judgment that the administrative exemption requires. “Computer employees” may be classified as exempt simply if they are paid either $455/week on a salary basis or $27.63 on an hourly basis including for all overtime hours. Merely using a computer does not qualify them; they must be involved in writing software programs or designing hardware systems. Another FLSA exemption that is particularly important regarding wireless usage is for “outside salespersons” that may be classified as exempt if they regularly work outside the employer’s place of business and their primary duty is making sales or obtaining contracts or orders. Under the new rules, outside salespersons have no salary-based requirement for exemption. Unless an employee meets the requirements for one of the FLSA exemptions, the employee is considered nonexempt and must be compensated for every hour worked, and at time-and-a-half for overtime work. This means that employers must keep a careful watch on the amount of time they expect a nonexempt employee to spend outside of normal work hours using a wireless device for work, and strongly consider instituting a policy addressing this situation. A company may be liable if an employee uses a wireless device to perform work whether or not the wireless device was company-provided. An employer even faces issues for exempt employees in some circumstances. Under the salary basis test mentioned above, most exempt employees must be paid their full salary for any work week in which they perform any work at all. Thus, if an exempt employee takes leave without pay but checks his or her e-mail during the week, that employee may be able to claim that he or she worked part of the week and must be paid for the whole week. On the other hand, wireless devices also can help employers reduce their wage liabilities in some circumstances. Many service employers such as plumbers, HVAC and appliance repair companies, and even police departments, require employees to be on call during certain hours and to stay near a telephone. DOL’s rules state that employees must be compensated for all “on-call” hours if their movements are overly restricted during that time. Wireless devices are among the tools that employers can use to keep their nonexempt on-call employees “in touch” but not actually working. The same steps that employers can take to insulate themselves against other employment claims still apply � it is merely a question of making smart human resources decisions and implementing them before things get out of hand. Here are the top five things an employer can do to avoid future liability and take a proactive stand on issues arising from the use of BlackBerrys and other PDAs: 1. Update employee handbooks and instruction materials to make it clear that company-provided wireless devices should be used responsibly (e.g., not while driving) and only consistently with company policy on when and for what purposes they may and must be used. To minimize FLSA liabilities, policies also should provide that nonexempt employees are not expected to spend more than a de minimis amount of time checking messages from outside the office and that employees should report on their timesheets time spent outside of work to check e-mail and voice mail messages when it exceeds certain thresholds carrying FLSA consequences. 2. Research new technology, prepare policies addressing new technology, communicate policies in writing to employees and secure their signatures (electronic or hard copy), and re-evaluate the policies on a regular basis. A company must always be thinking faster than the technology it deploys, and should be very careful about adopting new technologies that could have unforeseen effects for employees and business liabilities before first putting appropriate policies in place. 3. Have clearly defined policies regarding accessing and downloading copyrighted material and sexually oriented materials. Not only can a company be liable for such activity, a subpoena or e-discovery document request to search for evidence of alleged wrongdoing can result in very expensive data searches, even if little or nothing is found. 4. Let employees know that the usage of any employer-provided electronic device may be monitored to ensure they have no reasonable expectation of privacy. Informing employees of the employer’s right to access and monitor will cut down on usage for personal reasons. It also allows a business to research the amount of time an employee ought to spend using a wireless device before it becomes a burden instead of a way to be more efficient, as well as time spent for nonwork activities. 5. Seek competent counsel to review policies and address potential liabilities. If a company is starting to hear about complaints, even informally, it should investigate promptly and implement any necessary changes quickly and effectively. Many of these five key steps will be facilitated by a partnership between a company’s human resources and technology officials. With one eye on the future and the other on how employees use employer provided technology, there is no reason why a company should be at risk if they begin scrutinizing their human resources and technology policies regarding personal wireless devices now. As PDA technology becomes even more ubiquitous, standards for the proper and reasonable use of such technology for work purposes must be put in place. It is in the best interests of employers that these standards come from them � not the courts. Frank C. Morris Jr. is a shareholder with Epstein Becker & Green of Washington, D.C., where he heads the labor and employment practice. Shlomo Katz, an associate at the firm, assisted in the preparation of this article, which originally appeared in the New Jersey Law Journal, a Recorder affiliate. � Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected].

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