The ‘Wireless Ball and Chain’ is Leading to Wage-Hour Lawsuits Against Employers

August 2011Articles New Jersey Chamber of Commerce Enterprise

The work day has become longer and increasingly intrudes into employees’ personal lives. The blurring of work hours and personal time has allowed employers, perhaps unintentionally, to demand more of their employees. These demands mean that employees are performing work-related tasks at home or at night or even on the beach while on vacation.

This can be attributed to the wireless ball and chain. Blackberrys make it easy to contact colleagues, but they also make it hard to ignore emails and messages. One study shows that half of employed email users check their work messages over the weekend. A quarter of these employees are expected to check their emails. Almost half of these Blackberry users are expected
or required to respond to after-hours and weekend messages.

We are at a point in today’s society where employees are under an electronic siege. These circumstances have resulted in a new kind of wage-hour lawsuit (usually a collective or class action suit) being filed by employees against their companies. These claims involve demands for compensation (usually overtime) for work that often consists of checking and responding to emails. This is a new danger for employers and a situation that they must monitor and control with policies, explicit directives to employees or both. Incidental time spent by employees before or after their workday on so-called preliminary and postliminary work – if sufficiently part of the principal duties – is compensable. A key factor is whether the employer compels the employee to engage in the activity.

One employer defense: The employee’s use of his or her home computer, laptop or smart phone is outside the Fair Labor Standards Act’s broad definition of work. Work need not be an activity specifically directed or ordered by the employer, but that is “permitted” by the employer. Naturally, any implicit pressure to perform these activities would be deemed to show sufficient employer compulsion to convert the activity into compensable work time. My recommendation is for employers who provide PDAs or any kind of device, including cell phones, to clearly determine the “off-duty” usage of these devices. Then, draft a policy addressing such usage, with a careful eye towards the law and operational necessities.

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