Indiana

While a search of the Nexis database failed to turn up any instances so far of wage and hour lawsuits hinging upon Blackberry use, employment law specialists seem to think it?s inevitable, given both the proliferation of such devices and the clarity of the law on the issue.

"Nonexempt employees are being tethered to the company with Blackberrys and other devices," says Dan McCoy, an employment attorney and partner in the Mountain View, California, office of law firm Fenwick & West. If a worker gets a message from the boss or a client during breakfast or dinner and answers it, that counts as work time, just as surely as if the employee had come in early to the office or stayed late. "Blackberry time is work time," he says.

Similarly, an hourly worker who participates in a conference call during the drive home is on the clock, if his boss requires him to participate or doesn?t stop him from joining in, according to Robin Bond, the managing partner of Transition Strategies, a law firm based in Wayne, Pennsylvania.

Paul Lopez, director of the labor and employment practice at the firm of Tripp Scott in Fort Lauderdale Florida, advises companies to move proactively to protect themselves from overtime claims and possible lawsuits related to electronic devices.

The first step is to establish a clear policy on the use of Blackberrys and other devices outside the office, he says. Employees should be told that overtime spent using such devices must be documented, with possible disciplinary penalties for noncompliance.

However, a company should be careful not to state categorically that it will refuse to pay improperly documented overtime, Lopez explains.

"A lot of clients come to me and say, ?I don?t have to pay this employee overtime, because they violated the overtime policy,? " Lopez explains. "My response, is, ?Eeehh, that?s not quite true.? You can discipline them or fire them, but under the law, technically, you have to pay them. You don?t want to promulgate a policy that will lead to an FLSA complaint."

The burden of proof in overtime litigation rests primarily upon the employer, so it?s critical to have an effective system for documenting work done with electronic devices, Lopez says. One simple method is to require employees to copy any mail messages they send to their supervisor, as well as any spreadsheets, reports or other documents that they work on outside the office.