WARNING TO EMPLOYERS: Employee's Use of Laptops and Blackberrys Outside of the Office May Give Rise to Overtime Liability

In many work settings it has become commonplace for employees to be constantly “connected” to their job through laptops and Blackberrys (“PDAs”).  In fact, many employers provide PDAs to their employees, which leads to the inevitable question of whether some of the time spent on PDAs could be considered “work hours” requiring overtime pay.  Given the rise in the use of PDAs, there is a chance that courts will become increasingly comfortable with the idea that time on a train, for example, can be just as productive as anywhere else.  Thus, while those most likely to be working while commuting are probably exempt-category workers, such as managers and highly compensated employees, it is possible that the use of PDAs also will creep into the lives of workers who qualify for overtime.[1]  

Consequently, the biggest risk to employers from the increase use of PDAs, aside from protecting their proprietary information, is the potential of being faced with wage-and-hour law claims under the Fair Labor Standards Act (FLSA) by misclassified workers.  Cases of misclassified workers are where the employer treats the worker as exempt and does not track their work hours; however, the employee does not meet the IRS guidelines for exempt employees.  If the worker files an FLSA claim, there likely will be a factual dispute as to the amount of hours actually worked.  Blackberry or cell phone records showing emails and calls being made on behalf of the employer outside of regular work hours could very well be probative evidence to support (or refute) a worker’s overtime claim.[2] 

The growing trends in the use of PDAs and employment class actions mandate that employers take effective preventive measures to minimize the potential for overtime claims and costly class action litigation.  Further, once the Department of Labor, or any related state/local agency is made aware of possible FLSA violations, the agency may be entitled to request an audit of a company's payroll records and even speak to its employees.  This could present a host of issues to any employer that has not taken the appropriate steps to ensure compliance with the FLSA's wage-and-hour laws. 

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 or agency investigation.  Jackson & Campbell’s Employment Law Practice Group can assist companies in taking that proactive approach needed to help minimize the risk of such costly litigation.  We are often called upon by our clients to conduct an audit of their labor and employment policies to identify potential problems before claims are filed.  These audits can help prevent many types of employment claims by identifying potential issues that are currently found in many companies' policies, procedures and practices.

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The contents of this Employment Law Alert are intended for general informational purposes only and should not be considered legal advice. Moreover, the mailing of this Employment Law Alert is not intended to create nor does it constitute an attorney-client relationship.

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