Friday, July 25, 2008, 4:18 PM

Can You Read Me?

Are users of cellular phones, PDAs and other communications devices entitled to compensation for time spend keeping in touch with their offices, colleagues and clients? The answer, as is the case with most legal questions, is "it depends." Even though one recent decision concluded that carrying heavy files in one's car didn't make the time compensable, employers who insist that you be accessible at all hours may be asking for trouble. It's time to get back to basics:

The Fair Labor Standards Act requires that nonexempt salaried employees be paid for hours worked. That's right - nonexempt employees. One recent response to an American Bar Association article on this subject took the position that "if you're salaried, this sort of thing just comes with the territory," but that attitude was quickly corrected by another reader: The first to post, a law firm associate, naturally assumed that salaried associates are privileged to work as many hours as possible with no premium pay, but for all the rest of the workforce (including paralegals, IT staff, firm administration, and lots of others whose attention is desired 24/7) may or may not be exempt from the law's overtime requirements. Moreover, if the employee isn't exempt, all those working hours are subject to pay requirements, and if the tally goes over 40 hours in the workweek, time-and-a-half is mandated.

Time "on the job" includes time the employer requires to be spent as well as that which it "suffers or permits" to be incurred. "On-call" time has been a topic of Labor Department scrutiny for as long as the FLSA has been around: The first Supreme Court decision on the subject, Armour & Co. v. Wantock, 323 U.S. 126, was handed down in 1944. While generally the amount of time spent in sporadic communications may not be sufficient to limit the employee's freedom to engage in non-work activities, when does the line get crossed? Telecommuting raises its own set of issues, and all of those activities in between working at home and working at the office create vexing definitional issues. Some employers have gone so far as to attempt to prohibit employees from using work-related electronic communications outside "normal business hours," including leave and vacation time. An overreaction? Perhaps. Unenforceable? Probably. But this is yet another example of the ways in which the digital revolution has transformed the business world, and all change provokes litigation and, equally inevitably, legislative attempts to catch up with the times.

A simple three-word inquiry in a popular search engine - "overtime pay BlackBerry" - yields 27.800 hits, and the first hundred or so you read present a wide range of opinions and advice with few common themes other than "this can be a real problem." (Please, folks; my choice of the name of one electronic device wasn't meant to represent any preference or endorsement.) As the litigation cranks up, we'll revisit this subject from time to time to give you the latest developments in e-gear overtime law. Until then, just keep checking your e-mails and voice mails, and remember the system is keeping track of your time!

Click to read our earlier blog post on this topic.

See ABA Law Journal article (and comments) on this topic.

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