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Apr 05, 2011

Cell Phones Can Cost a Lot, Part II

By: Paul Ebeltoft

America seems addicted to addiction. Popular television shows serving the addiction market include Intervention, Celebrity Rehab, Hoarding: Buried Alive and the NCAA Basketball Tournament. Commentators postulate that these thrive because, however brutish and short our own lives might be, each new episode is cause for celebration. “Thank God I’m not like that.”

But wait! Does your office follow you to your car, your home, your gym, on your vacation? Do you secretly hope that the shallow end of the pool has a desk with internet connectivity? If you answered yes to any of these, you need to confront your problem.

Americans are hauling their electronic drug of choice in their pockets and shoulder bags. In 2006, employees checked work email every eight minutes while “off-work.” Today employees, on average, loose one hour of leisure each day to the electronic ball and chain. The symptoms of addiction to electronic connectivity are similar to those of alcoholism. In 2008, The Economist reported that 35% of BlackBerry users would choose the pda over their spouse.


Last month I wrote of possible consequences to your company of an automobile accident caused by a data-distracted employee. Your company has an equally serious exposure to claims for overtime compensation due to devices that connect the employee to the workplace anywhere, anytime. Consider the case of Jeffrey Allen:

Allen is a police officer in Chicago. He and other coworkers received pdas from the City. Allen claims that he uses his pda “routinely and regularly” while off duty. He alleges that he receives numerous telephone calls, e-mails, voice mails, text messages and work orders on his pda while off the clock. He responds to these communications. The City, he claims, knows what he is doing, but does not pay him for the time he spends responding.

Late last year, Allen became the class-action plaintiff in litigation against the City of Chicago claiming three years of past overtime compensation, plus interest, as required by the Fair Labor Standards Act (FLSA). Because the FLSA permits broader recovery than most employers are accustomed to encountering, the potential damages do not stop there. Allen also asks that the City of Chicago pay his attorney’s fees and costs, and that the court award the class double back pay as punitive damages. On March 15, 2011, a United States District Court denied the City’s motion to dismiss, allowing the case to proceed.

The FLSA was the product of the Great Depression. Designed to protect employees from predatory bosses, it defines “work” in the broadest sense, including mental effort on behalf of an employer. Over-simplified, the FLSA requires employers to pay non-exempt employees 1.5 times the employee’s regular hourly rate for work in excess of 40 hours per week. Again simplified, the FLSA severely restricts private employers’ efforts to avoid overtime compensation by using flextime schemes, employee waivers or consent, or by broadly classifying employees as exempt.

The FLSA’s extensive rule making and litigation history create a trap for the unwary. One FLSA expert likens FLSA to instant replay in a football game. After close analysis of the totality of the play, seldom is there not some infraction of some rule. Upon scrutiny, almost no employer follows the FLSA completely. The result has been the rise of a very successful litigation cottage industry. School Districts and other public employers seem to be the first targets. Private employers are sure to follow.


• Make sure that all of your employees are properly classified. Paying a salary is not determinative of the employee’s status. Whether an individual employee is exempt may require sophisticated analysis. Advice of employment counsel here will save trouble later.

• A prima facie claim for unpaid overtime switches the burden to the employer to produce “adequate records” showing that it tracks and pays all working hours appropriately. Review your record-keeping practices and expand them to include reporting of after-hours work by non-exempt employees. Some pda records are easily available. Others are not. Consider how best to track these.

• Re-write any policy that requires response by a non-exempt employee to a work-related call, email or text during non-working hours. A blanket prohibition will not work because the FLSA does not credit policies absolving the employer merely due to employee non-compliance. However, a good data device use policy will start to set the tone within your organization.

• Give both supervisors and employees appropriate training in the policy mentioned above. Employers need to emphasize that they do not expect employees to work all the time – and mean it. Employees need to learn the world will not end if an electronic inquiry waits until work-time.

• Consider limiting employer-supplied devices to truly exempt employees.

• Consider prohibiting the practice of linking an employee-owned device to your workplace server, telephone system or other electronic access points.

Reprinted with permission from an article submitted for publication in the April 2011 Southwest Area Human Resource Association newsletter.