hourglass-small.jpgThis blog post was authored by Maila Labadie

Emerging technologies and increased demand for worker productivity during lean economic times have changed the way Americans work.  Today, employees routinely check their smartphones at all hours for emails, text messages, voicemails, and other electronic transmissions.  The modern workplace includes anywhere within range of a wireless signal.  Some employees even seem to be addicted to using their smartphones.  In 2006, Webster’s New College Dictionary’s word of the year was “CrackBerry,” describing a person addicted to his or her BlackBerry device.

Although smartphones and other personal electronic devices offer employers and employees many advantages in the workplace, use of these devices can have significant legal implications.  One such legal issue is whether employers must pay nonexempt employees overtime under the Fair Labor Standards Act (FLSA) for time spent checking smartphones after work hours.

The FLSA requires employers to pay overtime compensation to nonexempt or hourly employees at 1.5 times the regular rate of hourly pay for all hours worked beyond a specified number (usually 40 hours in a 7 day workweek). (29 U.S.C. section 207(a)(1)).  Although “de minimis” work or insignificant periods of time are treated as non-compensable under the FLSA, electronic smartphone communications on the aggregate may amount to substantial work time for employees.  (29 C.F.R. section 785.47).  Furthermore, even work that an employer does not request is compensable if the employer has actual or constructive knowledge of it.  (29 C.F.R. section 785.11).

Employers should be wary of lawsuits for electronic overtime because employees who prevail can recover lost wages (plus interest), liquidated damages, and attorneys’ fees and costs.  (29 U.S.C. section 216(b)).  Significantly, the FLSA also allows employees to file class action lawsuits for a class of similarly situated employees to recover unpaid overtime.  Employers should note that the number of FLSA lawsuits filed is on the rise, and there are several pending cases involving employer liability for electronic overtime.

One case of particular significance to public employers is the 2013 federal district court case of Allen v. City of Chicago.  In this case, the Chicago Police Department issued BlackBerrys to a number of its officers, including a Sergeant named Jeffrey Allen.  Sergeant Allen later brought a class action lawsuit against the City, alleging that he and other similarly situated officers were entitled to unpaid overtime compensation under the FLSA for off-duty use of their BlackBerrys.  Allen claimed that he and other officers were required to use their BlackBerrys to perform off-duty work such as responding to telephone calls, emails, voicemails, and text messages.  Allen stated that the Department expected officers to be available 24 hours per day via BlackBerry, and officers felt obligated to respond to emails while off duty to improve chances of receiving promotions or coveted assignments.  The City moved to dismiss the action, but the trial court denied the motion and the matter will now proceed forward towards trial.

Potential defenses to class action overtime claims for smartphone usage include (1) that the varied extent of smartphone usage among employees defeats the similarly situated requirement and (2) that employees may be unable to prove the amount of time they actually spent conducting off-duty smartphone work.  Nonetheless, employers should be concerned that courts have permitted such actions to proceed to trial, and employers should take the following precautions to reduce potential liability for electronic overtime lawsuits:

  1. Properly classify employees as exempt or nonexempt based on the employee’s job duties and salary.
  2. If possible, limit issuance of such devices to employees who are truly exempt and prohibit nonexempt employees from having remote access to work communications on their personal smartphones.
  3. If smartphones must be issued to nonexempt employees because of business necessity or if nonexempt employees have personal smartphones with remote access, require employees to keep detailed time records of each phone related activity, including the date, time, and description of the communication. (The Department of Labor recently issued an “app” that allows employees to track hours worked: http://www.dol.gov/dol/apps/timesheet.htm).
  4. Develop a comprehensive written policy regarding the use of smartphones, defining the agency’s objectives regarding remote access and employee overtime.
  5. Regularly remind employees of agency policies against performing unauthorized work, and follow through with disciplinary action against employees who violate the policy (i.e. confiscate employer-owned phones or suspend remote access privileges).
  6. Unless prohibited by privacy laws, collective bargaining agreements, or other authorities, monitor employees’ access to and use of the network and email.
  7. Some supervisors send emails with the “delayed delivery” feature on Outlook so that employees do not receive the email until they get to work.

We anticipate that these types of claims will become more prevalent.  Therefore, we encourage agencies to proactively address the issue of off-the-clock hours caused by use of smartphone technology so that your agency can avoid being challenged.