Wireless Gadgets and 24/7 Access to Employees: Employers Beware of the Hidden Cost

T-Mobile USA has been sued in the Eastern District of New York by its retail sales associates and supervisors who allege that they were not compensated for "off-the-clock" activities linked to Blackberrys and other hand-held devices. The complaint in Agui v. T-Mobile alleges that employees were issued smartphones and were required to review and respond to communications (telephone calls, conference calls, emails and text messages) from other employees of T-Mobile at all hours. Complaining employees allege that their lunch breaks were interrupted by T-Mobile business, as well as their nights and weekends. The total additional time employees spend "off-the-clock" working was up to 15 hours according to the complaint. This is the second suit against T-Mobile making these types of claims for unpaid wages and overtime. To read the Agui complaint, click here.

In light of the prevalence of smartphones and other wireless technology permitting employers to be in contact with employees at any time of day or night, employers should prepare a policy to address work provided during otherwise non-working hours if the employer does not already have such a policy in place. Employees should be encouraged to report all their time worked, regardless of where, when or by what means, the work is conducted. Making sure all employees, particularly managers and supervisors, are aware of this policy is an important step for an employer to ensure its compliance with FLSA requirements. As always, seeking counsel during the drafting or review stages of employment policies is a proactive means of furthering the company's compliance efforts.