By BLR Founder and Publisher Bob Brady
Our CEO (and Chief BlackBerry User) wonders whether the time nonexempt workers spend checking in with BlackBerry-type devices might eventually be considered legally compensable under FLSA.
Wherever you go, from the canyons of Wall Street to the canyons of our national parks, you can depend on one thing: In addition to seeing scores of people on their cell phones, others will be thumbing away on their BlackBerry® or Treo™-like devices. (And while I’m not one of the worst, I am one of the guilty.)
Whether this is a good thing is beside the point. It is reality, and it is a reality that may spell trouble for HR.
While the high priests of etiquette may fret about these practices, work outside the workplace by some employees could come back to bite us if we are not careful. Many experts believe that it is only a matter of time before “BlackBerry time” is deemed to be compensable for wage and hour purposes, just as “on-call time” has been. If so, there could some nasty surprises.
Consider these situations:
Case #1: A big IT install is going on over the weekend, and a tech involved during the week, but now off work, is told by her boss to check her PDA regularly to see if she is needed.
Case #2: A high-level sales VP knows that a Far East-based client is likely to have questions late in the evening. He announces that everyone on the sales team, including support people, should be checking in regularly.
Case #3: A manager emails her assistant regularly when the assistant is on vacation, asking for help with details.
Case #4: A manager, on vacation herself, emails staff back at the office. One day an emergency develops, and her boss asks her to be continuously available through the morning.
Is checking-in time compensable?
Are any of the situations compensable for wage and overtime purposes? Some may be, and state and federal agencies are bound to address the situation at some point. Some poor HR managers are going to end up looking foolish when an audit finds a whole slew of “violations” they never knew about.
Consider Case #1 — that of the IT tech told to check her PDA regularly. It’s one thing if she can do it once or twice from the comfort of her living room, but what if she lives in an area without reception and has to drive miles, and the manager expects it every half-hour? The analysis will probably center, as it does with “on call,” on how much it impacts the employee’s ability to use her time away from work.
Cases #2 and #3 are similar. If such off-work time work goes too far, it can easily cross the line beyond which FLSA starts to require that the time be paid, and perhaps paid at overtime rates.
Case #4 poses two different issues: You have a manager who is asked to be continuously available for part of a day while on vacation. Isn’t it just possible that the Labor Department would view this as a partial work day? It is one thing for the manager to voluntarily check email or voicemail, but it is another for her to be told to be “continuously available.” If it meant that she can’t go fishing or can’t take the 3-hour nap she wanted, it could mean that she would have to be paid for the whole day.
To my knowledge, there haven’t been any cases on this—yet. Nevertheless, it is something that should be on your radar screen. Is it time to begin drafting a policy that addresses the issue and provides guidance to managers dealing with nonexempt personnel? Maybe, maybe not, but it is certainly time to keep your eye on the problem, and make sure that managers are aware of the potential liability.
For as we become more and more “virtual,” the law is virtually certain to follow.
See you next time. Have a great HR week!