Blackberry Use and Overtime Pay, Quirky Question # 48

Quirky Question # 48:

The regular business hours for our IT Help Desk are 8:00 a.m. through 6:00 p.m., Monday through Friday.  Obviously, people sometimes need IT support outside those hours, and the four non-exempt employees who staff the Help Desk are issued BlackBerries to respond to e-mails and calls outside of regular business hours.

These employees were very happy to get BlackBerries.  They used to take turns working late one or two nights a week – now they can monitor Help Desk calls and e-mails while going about their “real lives” outside of work.  Our approach seems to be working since I have received positive feedback from our staff that the IT personnel have helped them at a moment’s notice, even at unusual hours (one person reported that she recently received assistance at 2:00 a.m.; another workaholic described how helpful the IT folks were on Christmas day).

Since these are non-exempt employees, should I be worried that we are exposing the company to liability under the FLSA?  We’ve made clear to them that they should report any time they spend responding to Help Desk issues outside their regular work hours.  Is that enough to minimize any risks?

Dorsey’s Analysis:

New technologies like BlackBerries, cell phones, and remote-access Internet connections can create wage and hour headaches for employers because they enable employees to work outside the workplace and outside of or beyond regular work hours.  One thing is clear:non-exempt employees must be compensated for any time they spend working, even if they are only checking and responding to e-mails between commercial breaks.

Where (like here) business needs require that non-exempt employees respond to e-mail or take calls after hours, the biggest risks employers face are claims that non-exempt employees were not paid for all hours they worked and/or that they were owed overtime for hours worked outside of regular business hours.  An employer’s best protection is a clear and consistently-enforced policy that employees are required to record their time and that they will be paid for all time worked, including overtime where necessary.

It sounds like you have implemented such a policy already.  To ensure that it is consistently enforced, we recommend taking periodic steps to ensure your IT employees are in compliance.  For example, you could periodically check their time sheets or other time records – if you know they are responding to e-mails outside of regular work hours, that time should be reflected on their time sheets.

Of course, it will be difficult for you to monitor or verify the hours your IT employees actually work outside of regular business hours.  In this case, where non-exempt employees are responding to e-mails in the middle of the night or on holidays, you may want to set some grounds rules to limit your liability – both for off-the-clock work and unfettered overtime.  For example, you could try to manage employees’ expectations regarding 24-7 IT support.  IT employees could be officially “off duty” and not required to check or respond to e-mails after 10 p.m. or another reasonable time, or projects requiring support overnight or on weekends or holidays could require advance notice and approval.

For employers who are considering whether to issue BlackBerries or cell phones to non-exempt employees, we recommend they take a step back and assess whether they want or need their non-exempt employees to be checking and returning e-mails and phone calls outside of their regular work hours.  In addition to ensuring that employees are paid for all time they work, preventing non-exempt employees from working outside of regular work hours gives employer more control over the amount of overtime they work.

One option is for employers to implement a clear policy that non-exempt employees are not expected to, or permitted to, check e-mail or return phone calls outside of regular business hours, without prior approval from their manager.  Employees who do so without their manager’s approval should be paid for their time, but disciplined for violating the policy, up to termination if necessary, to get the message across to repeat offenders.  To remove temptation, and make it easier to enforce their policies, employers should think twice before handing out BlackBerries to non-exempt employees or giving them remote access to the company’s computer system.  Employees cannot work outside of regular business hours if they do not have access to the company’s systems.  On the other hand, if an employer goes to the trouble and expense of issuing BlackBerries to non-exempt employees, it arguably has created an expectation that the employees will be available outside of regular work hours.

Cell phones pose an especially tricky issue, since most employees have their own cell phones and may give their phone number out to customers or coworkers unbeknownst to management.  Again, an employer’s best defense is to implement and post a policy prohibiting non-exempt employees from working outside of regular work hours and to discipline offenders.

Before deciding on a course of action, employers should take an honest look at their corporate culture to make sure their policies and culture are aligned.  For example, employees may feel there is an unspoken expectation that they will be available and responsive to e-mails or phone calls in the evening or on weekends (whether or not the company provides BlackBerries or other technology).  Those employees may feel pressured to break rules prohibiting working outside of work.If they are working but not recording their hours, employers could be liable for unpaid overtime or off-the-clock work since an employer must compensate employees for any work it is found to “suffer or permit.”29 U.S.C. § 203(g).

Whatever policy is implemented, companies must make sure their policies are consistently enforced across the company.  That means supervisors cannot look the other way if they are getting e-mails after hours and their reports’ time sheets do not reflect that extra work.

Even with the safeguard of a clear policy in place, there are unresolved legal implications that an employer cannot perfectly plan for:

1) For example, could an employee claim she is so tied to her BlackBerry that she is essentially working from the time she gets up and first checks her e-mail until she checks it one last time, right before bed?  Even if the employee is not actively responding to e-mails, she is constantly checking her BlackBerry to make sure she has not received an e-mail.  In cases dealing with “on call” time, courts have generally found that employees do not have to be compensated for suchtime as long as they are otherwise free to go about their personal business.  See, e.g., Reimer v. Champion Healthcare Corp., 258 F.3d 720, 725 (8th Cir. 2001); 29 C.F.R. § 758.17.  BlackBerries, however, require more attention than a pager that is clipped to an employee’s belt and ignored until it goes off. Courts have not yet considered how employees should be compensated for time spent monitoring their BlackBerries.

2) Along the same lines, it may be difficult, if not impossible, for employees to record every single e-mail exchange.  Is it okay if some very brief and infrequent exchanges slip through the cracks?  The Department of Labor’s regulations permit employers to “disregard” “insubstantial or insignificant periods of time … which cannot as a practical administrative matter be precisely recorded.”  29 C.F.R. § 785.47.  This exception applies, however, only where there are “uncertain and indefinite periods of time involved of a few seconds or minutes duration.”  Id.  Also, “an employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time.”  Id.  Thus, even if non-exempt employees spend miniscule amounts of time responding to e-mails outside of regular work hours, if they do so on a regular basis, and/or are expected to do so, an employer may not be able to invoke the de minimis exception.

In sum, employers should think hard about whether their business requires non-exempt employees to be responsive to e-mails or phone calls outside of regular work hours.  If they do, an employer’s best defense is to implement, and strictly enforce, a policy requiring employees to record all of their time and making clear that they will be paid for all their time.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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