If you’re handing out BlackBerrys like candy in the workplace, you better have a policy in place to ward off potential overtime lawsuits.
That’s the advice many lawyers are shelling out to employers as the popularity of hand-held devices is booming in the workplace, allowing wired-up employees to work anywhere, anytime.
Management-side attorneys fear a new wave of wage-and-hour litigation is just around the corner, in which employees will claim overtime for all the hours they’ve spent clicking away on their BlackBerrys or other digital communication devices.
“We’ll see it; it’s only a matter of time,” said Jeremy Roth in the San Diego office of Littler Mendelson. Roth said he has cautioned several clients about the issue in the past year, advising them to get policies in place.
“Before there was at least an argument that, no, the employee is not being truthful when they say, ‘I did all this work after hours.’ But now, that swearing contest is taken out of the mix,” Roth said. “If the employee says, ‘Let’s take a look at my BlackBerry,’ you now have a record. If it’s a text message or a Wi-Fi at Starbucks � if they’re nonexempt and they’re off the clock, that’s a problem for employers.”
Under federal labor laws, a “nonexempt employee” is someone who is eligible to receive overtime pay. An “exempt” employee, such as a manager or supervisor, is not entitled to overtime pay.
And it’s a problem of which employers are well aware, said April Boyer, an attorney in the Miami office of Kirkpatrick & Lockhart Preston Gates Ellis, a management-side law firm.
“Everyone is buzzing about the concern that [lawsuits] are coming,” said Boyer, who has helped several clients add BlackBerry-use policies to their existing computer policies.
Boyer believes that complaints about unpaid BlackBerry time will likely emerge from discontented workers.
“Usually you don’t hear about it until you have a disgruntled employee,” Boyer said. “They can tally up an enormous list of alleged hours worked and the employer is in a difficult position trying to defend what the actual hours worked were.”
Some employers may want to require that employees get permission first before using their BlackBerrys after work hours, said Mitch Danzig, an attorney in the San Diego office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Danzig advises his clients to give BlackBerrys only to exempt employees.
“Plaintiffs’ firms are trolling for this,” he said. “Now what you’re seeing on [plaintiffs'] firms’ Web sites are, ‘Have you been assigned a BlackBerry or a phone? If so, give us a call.’ “
Not quite, countered plaintiffs’ lawyers, who believe that employer-side attorneys are overreacting.
“Plaintiffs’ lawyers don’t manipulate, manufacture or escalate claims,” said employee-rights attorney Lisa Curry of Deutsch Atkins in Hackensack, N.J. “We see how individuals are treated in the workplace. And if they’re treated unfairly, we will work aggressively to enforce their rights.”
As to BlackBerry time that is unpaid, she said employees may have some valid claims to raise. If workers are tied to their BlackBerrys, answering lengthy e-mails or making phone calls after work hours, they should be paid for their work, she said.
“Employees have been put upon to do errands outside of work hours and they usually don’t get reimbursed. So I can see where it would become a bigger issue with the advent of BlackBerrys,” Curry said. “If they can show they spent a great deal of time reviewing e-mails, then they may have something there.”