Legal News

Are Blackberrys the Next Battleground in Wage-and-Hour Litigation?

By Ashby Jones

The next front in the ever burgeoning field of wage-and-hour litigation? Blackberrys, according to a story in the National Law Journal. Click here for another take on the topic, which ran in the NYLJ last year.

According to the story, litigation could be “just around the corner,” filed by employees who will claim overtime for all the hours they’ve spent typing away on their Blackberrys, cell phones, or other communication devices.

“We’ll see it; it’s only a matter of time,” said Jeremy Roth, a lawyer in the San Diego office of Littler Mendelson. Roth said he has cautioned several clients about the issue in the last year, advising them to get policies in place. Added Roth: “Before there was at least an argument that no, the employee is not being truthful when they say, ‘I did all this work after hours.’ But now, that swearing contest is taken out of the mix.”

So what should employers do? According to the story, some may want to require that employees get permission first before using their BlackBerrys after work hours, said Mitch Danzig, an attorney in the San Diego office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Danzig advises his clients to give BlackBerrys only to employees who are exempt from overtime laws.

“Plaintiffs’ firms are trolling for this,” he said. “Now what you’re seeing on [plaintiffs’] firms’ Web sites are, ‘Have you been assigned a BlackBerry or a phone? If so, give us a call.’ ”

Ah, nothing like the word “trolling” to get plaintiffs lawyers riled up.

“Plaintiffs’ lawyers don’t manipulate, manufacture or escalate claims,” responded employee-rights attorney Lisa Curry of Deutsch Atkins in Hackensack, N.J. As to BlackBerry time that is unpaid, she said employees may have some valid claims to raise. If workers are tied to their BlackBerrys, answering lengthy e-mails or making phone calls after work hours, they should be paid for their work, she said.

LB Readers, we’ve written before about Blackberrys (click here and here), usually in the context of whether they’re good or bad for lawyers’ lives. But we’d love to hear your thoughts on this. Do some employers use the Blackberry (or similar devices) to take advantage of their workers?

Full post as published by Law Blog - WSJ.com on April 22, 2008 (boomark / email).