n one sense,
Blackberrys, Palms, "smart" cell phones and other electronic devices are a godsend
to companies, since they allow employees to communicate with supervisors and clients
and get work done, no matter where they happen to be or what time of day it is.
But when it comes to nonexempt employees covered by wage and hour laws, experts
say information-age gadgetry has the potential to get employers into big trouble.
Some experts believe that the business world is about to be hit by a new wave of
litigation in which workers will seek overtime compensation for all the hours they’ve
spent clicking away on their devices. While a search of the
Nexis database failed to turn up any instances so far of wage and hour lawsuits
hinging upon Blackberry use, employment law specialists seem to think it’s inevitable,
given both the proliferation of such devices and the clarity of the law on the issue.
"Nonexempt employees are being tethered to the company with
Blackberrys and other devices," says Dan McCoy, an employment attorney and partner
in the Mountain View, California, office of law firm Fenwick & West. If a worker
gets a message from the boss or a client during breakfast or dinner and answers
it, that counts as work time, just as surely as if the employee had come in early
to the office or stayed late. "Blackberry time is work time," he says.
Similarly, an hourly worker who participates in a conference
call during the drive home is on the clock, if his boss requires him to participate
or doesn’t stop him from joining in, according to Robin Bond, the managing partner
of Transition Strategies, a law firm based in Wayne, Pennsylvania.
Paul Lopez, director of the labor and employment practice
at the firm of Tripp Scott in Fort Lauderdale Florida, advises companies to move
proactively to protect themselves from overtime claims and possible lawsuits related
to electronic devices.
The first step is to establish a clear policy on the use of
Blackberrys and other devices outside the office, he says. Employees should be told
that overtime spent using such devices must be documented, with possible disciplinary
penalties for noncompliance.
However, a company should be careful not to state categorically
that it will refuse to pay improperly documented overtime, Lopez explains.
"A lot of clients come to me and say, ‘I don’t have to pay
this employee overtime, because they violated the overtime policy,’ " Lopez explains.
"My response, is, ‘Eeehh, that’s not quite true.’ You can discipline them or fire
them, but under the law, technically, you have to pay them. You don’t want to promulgate
a policy that will lead to an FLSA complaint."
The burden of proof in overtime litigation rests primarily
upon the employer, so it’s critical to have an effective system for documenting
work done with electronic devices, Lopez says. One simple method is to require employees
to copy any mail messages they send to their supervisor, as well as any spreadsheets,
reports or other documents that they work on outside the office.
"You want to make sure that when employees are logged on at
home, they’re actually working, and not just sitting there watching TV or something,"
Lopez says. "In order to do that, you need to come up with some performance thresholds,
rather than just basing it on an honor system."
Alternatively, the company’s intranet and mail servers can
be set up to generate logs of such remote activity, or even to track keystrokes.
Additionally, Lopez advises companies to compile daily and
weekly time sheets that include any hours spent using electronic devices, and to
require employees to sign those sheets to verify their accuracy. "Have a specific
category on the time sheet for remote access hours," he says.
Lopez says it’s not uncommon to have employees who are being
let go because of downsizing or performance issues suddenly claim large amounts
of undocumented overtime.
"When you’re in that situation, you want to be able to pull
up hundreds of daily time sheets tracking all their work, and show them where they
signed off on those time sheets," Lopez says. "You also want to be able to remind
them that they were advised to document their time when they logged on from home.
That puts you in the strongest possible position."
"Truthfully, I don’t think most employers focus on this stuff,
until they get zapped with a lawsuit," he says. "It only takes one time for them
to wake up, though."
Keeping and maintaining such detailed records, of course,
doesn’t come cheap. Lopez says companies should factor in monitoring expenses when
they do they do a cost-benefit analysis about equipping employees with Blackberrys
and other devices
They also should consider the potential for overtime liability
when they weigh whether or not to equip a particular portion of their hourly workforce
with remote access.
"If you’ve got a technical person who is going to be out in
the field making repairs, that person probably is going to be communicating only
with the office, and that’s easy to track," Lopez says. "But when you get into sales
or customer service, someone who speaks to clients, that’s a potential powder keg
of exposure."
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