By BLR Founder and CEO Bob Brady
BLR’s founder and CEO explores the “Blackberries at the beach” phenomenon—the expectation of 24/7 availability even when on vacation. Do nonexempts need to be paid? Are exempts modern day wage slaves?
At BLR’s last Employment Law Update conference, several speakers talked about the issue/problem/phenomenon of the “BlackBerry® at the Beach.”
The reference is to people who compulsively check and respond to their e-mail, even when on vacation. The commentators’ speculation was that someone, sometime, will bring a wage and overtime suit claiming that such activity is “work time” compensable under the Fair Labor Standards Act.
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As far as I know, we are still waiting for that enterprising plaintiffs’ lawyer to bring a class action, but all of the speakers urged attendees to examine their company policies.
The most basic issue is this: If employees are expected to check in, is their e-mail time compensable? And if so, would it be at overtime rates? When does it start and stop? What if there is no formal requirement, but you know they are putting in time? Does voluntary e-mail checking require payment?
The general wisdom is that a little is OK; a lot could be trouble. Voluntary is better, but not totally risk-free.
Nonexempt
Most of these questions apply to nonexempt employees, whom you must pay whenever you “suffer” them to work. So it seems inevitable that we will soon see attempts by nonexempt employees and their representatives to claim wages and overtime when the employee is required to be on call, either via e-mail or voice mail, and when the activity interferes with their off-the-job routines. Similarly, when e-mails or voice mails require immediate action, the time spent responding could be compensable.
Exempt
Exempt employees are different, of course. By definition, their wages are not absolutely linked to their hours. They can’t be docked if they miss an hour, and they don’t get overtime, either.
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All this leads me to wonder if low-level “exempt” employees are the new “wage slaves,” expected to work through lunch, be available weekends and nights, and be on call while on vacation. They are caught in the middle between nonexempt employees, who at least get to claim overtime, and bosses above them, who have much more control over their schedules, and who are well compensated for their efforts.
Many ambitious young professionals see this demanding lifestyle as a badge of honor, a rite of passage, the cost of success. They thrive on the challenge, and their complaints seem more like bragging. Others may be a lot less happy. They put up with it because they feel they have no choice.
What about employees who are exempt from overtime? Are they the new wage slaves? Let me know your opinion. E-mail Rbrady@blr.com or use the Share Your Comments button below and let us know.
I can see the lawsuit even now as we speak! Vacation is vacation and no employer should ever ‘require’ an emplyee to check their email or vioce messages. It should not be expected either, although I understand the desire to have less work when you get back from time off, I encourage employees to resist the urge and focus on resting, relaxing and having a good time. That’s what vacation is all about — resting and relaxing the mind, the body and the spirit.
HRChar
In reading your March 28, 2008, e-article, “Blackberries at the Beach: Are Exempt Employees the New Wage Slaves?,” this speaks to an ongoing battle I have with our non-exempts when they are at home (after work hours) checking their e-mail “because they just can’t stand it,” etc. To avoid any potential legal pitfalls, as you describe, my rule of thumb is if non-exempts are on the computer / PDA checking work-related e-mails and it’s over the “7-minute” rule, they must record this on their time sheets, in the event we have an OT issue at the end of the week. Do they always do this? I think you know the answer to that! However, my message is consistent so as to error on the side of caution in their favor.
My interpretation of your article is that you are suggesting that if there is an expectation from the employer that the employee check their e-mail from home (or wherever) that only that time is compensable time (for non-exempts). Is that correct? Again, I would argue the same old FLSA saga….if work is performed, it’s compensable. Period. Of course, this behavior can turn into a disciplinary issue if the employee doesn’t stop it (assuming the employer knows about it!).
I would love more information and dialog on this subject. Again, it’s a CONSTANT argument I have with some staff.
Kim Michael, PHR
Director of Operations & Human Resources
Region V Systems