Beyond The Time Clock: BlackBerry & Cell Phone Usage

Recently ABC News asked their employees to sign a waiver affirming that time spent checking work e-mail via BlackBerry was not compensable. The employees expressed concern, and ABC News responded by taking away the BlackBerries. The lines were drawn.

On one hand, ABC News likely wanted to minimize the risk that its non-exempt workforce’s use of BlackBerries after-hours did not result in additional hours worked (and possibly overtime), or class action liability for non-payment down the road. Meanwhile, the employees presumably wanted to ensure they were compensated for all hours worked; even the non-traditional hours associated with BlackBerry time outside of the office.

Numerous employers have not considered that twenty minutes emailing in the evening, almost certainly should be compensated pursuant to the Fair Labor Standards Act. For those businesses, a brief introduction to this issue is offered below. However, for employers that recognize this quandary, this article focuses on tips to address it.

The Law Of The Clock

Stated simply, employers must pay their non-exempt (hourly) workforce for all “hours worked.” This term includes all time spent primarily for the employer’s benefit, encompassing, for example, a secretary’s time spent surfing the Internet while waiting for an assignment. “Hours worked” also includes work done off-premises as long as the employer knows or has reason to know that work is being performed.

Employers often maintain a written policy against off-the-clock work or unauthorized overtime. However, even with such a policy, it remains the employer’s duty to ensure that only authorized work is performed. Importantly, an employer may not accept the benefit of unauthorized work without compensating its employees for the hours.

“Sent From My BlackBerry”

With this background, enter the BlackBerry and the cell phone. Increasingly, businesses expect their workforce to accept and use a company-issued BlackBerry and cell phone to stay in touch beyond the business day. For the exempt (salaried) workforce, the BlackBerry is a natural additional to the corporate arsenal. Exempt employees are typically expected to complete tasks without regard to the business day or the business week. In exchange for the predictability of a regular paycheck and generally higher pay, the exempt workforce is not compensated for late nights or weekend work…or the occasional e-mail to customers and colleagues from home late at night.

Issuing BlackBerries and cell phones to the non-exempt (hourly) workforce, on the other hand, is problematic. Time spent sending and receiving work-related emails or calls is almost certainly “hours worked” and, therefore, must be paid. However, time spent on BlackBerries and cell phones almost always occurs beyond the relatively safe parameters of time clocks.

Even with the best intentions, an employer may find it difficult to measure off-site working time. Moreover, counting this time wrecks havoc on a workweek carefully designed to reach, but not exceed, 40 hours.

While de minimis increments of time may be disregarded legally, an employer cannot turn a blind eye toward meaningful work time, nor is it prudent to rely solely on this fact-specific exception. Thus, employers must devise a plan to handle their non-exempt workforce’s BlackBerry and cell phone use.

Remind Me Again…

First and foremost, employers should reconsider whether their non-exempt (hourly) workforce should have BlackBerries or cell phones at all. A company-issued BlackBerry or cell phone is a device that enables employees to work away from the office. That is, BlackBerries and cell phones are designed to do precisely what employers typically do not want their non-exempt employees doing — working off-the-clock.

Here’s Your BlackBerry. Don’t Use It.

Once you have ensured that BlackBerries or cell phones are necessary for at least a segment of your non-exempt (hourly) workforce, a policy should follow. A BlackBerry and cell phone policy can address many different topics, including:

The goal of a BlackBerry and cell phone policy, like any policy, is to create clear, objective expectations so that as little as possible is left to an employee’s discretion.

“You Might Want to Re-Read Our Policy.”

Now that a policy is in place, make sure that management is familiar with it and manages consistent with it. For example, if the policy states that employees should not use their BlackBerries and cell phones if doing so would result in overtime, managers should not habitually reprimand their employees for not responding to emails on Friday nights. Management’s expectations should reinforce the policy, not undermine it.

Dust Off The Timecards

Federal law requires recordkeeping, so regardless of the administrative burden or employees’ preference for estimating, provide paper timecards for employees to record BlackBerry time and require them to do so. Expect employees to capture all of their time; any de minimis determinations are for you to make, not them. Employees should submit BlackBerry timecards at the end of every payroll period, even if they have no BlackBerry time to report.

As discussed above, wage and hour policies are of little value unless they are enforced. To ensure that your employees are recording their BlackBerry time, check in periodically with managers and compare notes. If payroll records do not reflect the fact that “Sally” writes detailed emails every evening, address the issue with her and consider discipline.

Reply-All

Much of the non-exempt (hourly) workforce has no use for company-issued BlackBerries or cell phones, and should not have them. For those non-exempt positions that require BlackBerries or cell phones, employers should devise a policy detailing the do’s and don’ts, ensure that management supports the policy, and set and enforce recordkeeping requirements. Doing so will ensure that employers take advantage of the benefits of an accessible workforce while minimizing the concomitant wage and hour risks.

This article was written by Joseph Schmitt, who is a labor and employment attorney at Halleland Lewis Nilan & Johnson, P.A. in Minneapolis, MN.

Schmitt regularly advises management regarding various workplace issues, including wage and hour compliance. Members as part of their membership benefit plan, may consult with Schmitt for 30 minutes, per issue FREE of charge. To take advantage of this valuable membership benefit, please contact Schmitt using the information below:

Joseph Schmitt
Halleland Lewis Nilan & Johnson
400 One Financial Plaza , 120 S. 6th St.
Minneapolis, MN 55402-4501
Phone: (612) 305-7500
Email: jschmitt@halleland.com

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