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Does Being Tethered To Your Blackberry Give Rise To Overtime Liability?

Published by on April 22, 2008

The WSJ Blog has an article today on whether after-hours Blackberry use is the next wage and hour battleground.  The article is here.  Some argue that time spent answering emails after-hours is compensable time for nonexempt employees.  If that is the case, employers should have clear policies in place regarding the use of Blackberry’s or other […]

The WSJ Blog has an article today on whether after-hours Blackberry use is the next wage and hour battleground.  The article is here

Some argue that time spent answering emails after-hours is compensable time for nonexempt employees.  If that is the case, employers should have clear policies in place regarding the use of Blackberry’s or other email devices by nonexempt employees after regular working hours.  One lawyer in the article is quoted as advising employers simply not to issue Blackberry’s to nonexempt employees.  As “over-lawyered” as it may seem, given the proliferation of overtime lawsuits today employers would be well-advised to evaluate their Blackberry/PDA usage policies and practices. 

The biggest danger here, however, is the potentially misclassified worker.  In the case of the misclassified worker, the employer has been treating the worker as exempt and, therefore, not tracking their work hours.  If the worker files an FLSA claim, there will likely be a factual dispute as to the amount of hours actually worked.  Blackberry or cell phone records shows emails and calls being made on behalf of the employer outside of regular work hours might be probative evidence to support (or refute) a worker’s overtime claim.

This brings us full circle to a recent post on this blog — is it time for your company to conduct an FLSA audit?  It is far better to have properly classified employees than to be dealing with these issues after the fact in defense of a lawsuit.

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