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BlackBerry use can create FLSA issues

Posted On: Sep. 12, 2010 12:00 AM CST

For the past three years, the Chicago Police Department has handed powerful new tools to officers in the field—BlackBerry smartphones. But the BlackBerry may have backfired on the department, which is now being sued by a sergeant in the gang investigations unit for the overtime he claims he earned while using his smartphone off the clock.

The department “has willfully violated the (Fair Labor Standards Act) by intentionally failing and refusing to pay Plaintiff and other similarly situated employees all compensation due them under the FLSA” for their after-hours Blackberry use, Sgt. Jeffrey Allen said in a suit filed in May as a proposed class action. A judge has to certify the case as a class action for it to proceed.

The case is one of a handful nationwide in which employees have claimed overtime pay for smartphone use—and apparently the first involving public employees. But lawyers say such cases are a clear warning to employers to put a smartphone usage policy in place before they end up in potentially costly litigation. Smartphones “are very dangerous and risky for nonexempt employees to have if you're worried about overtime,” says Jeremy A. Roth, a partner at San Diego law firm Littler Mendelson.

“Clearly there's a tremendous benefit to being able to access work remotely,” says Howard S. Lavin, an attorney at the law firm Stroock & Stroock & Lavin in New York. “It's a fabulous tool. The problem is when you take technology and apply it to longstanding laws, there are unintended consequences.”

Employers can minimize the risk of litigation by restricting smart-phone use to exempt employees or by instructing nonexempt employees to take calls from customers or clients only during regular work hours.

Under the FLSA, nonexempt employees are entitled to overtime compensation for “time spent working” beyond a 40-hour workweek. An employee does not even need to be required by the employer to work overtime but must merely do so for the employer's benefit.

Allen said the police department provided him with a BlackBerry so he could “access work-related e-mails, voice mails, and text message work orders regardless of their location. Chicago Police Department work was routinely accomplished through” using his BlackBerry. An attorney for the Chicago Police Department could not be reached for comment.

In a class action suit filed last year in Wisconsin, a former CB Richard Ellis Group Inc. employee said the Los Angeles-based real estate brokerage required him to answer messages and calls on his smart phone within 15 minutes “regardless of and without receiving compensation for the time spent doing so.” CB Richard Ellis did not return calls seeking comment.

While an employee's off-the-clock smartphone use may amount to only a few minutes here or there—and the FLSA provides an exception for “de minimis” overtime—legal experts say an employer's liability can mount up in a class action.

Moreover, the electronic records stored on smartphones may give an employee solid evidence on which to base an overtime claim.

None of the suits has reached an adjudication on the merits. Bellevue, Wash.-based T-Mobile USA Inc. recently settled a case filed by sales representatives who claimed they were entitled to overtime pay because they were required to monitor their smartphones “at all hours of the day.” As part of the settlement, the parties agreed not to disclose the terms.

Matthew J. Heller is a contributing writer to Workforce Management, a sister publication of Business Insurance.