Legal News

A Boom in ?Overtime? Lawsuits? Blame Technology

By Ashby Jones

It’s something the world is growing accustomed to, for better or worse: the ever-shrinking divide between work and leisure time. Ubiquitous Internet-access, Blackberrys, cell phones — all sort of technological advances — make it easier to take a “work from home” day when a child is sick. At the same time, the advances give employers the ability to make 24/7 demands, and expect 24/7 responses.

With the blurring of “on” and “off the clock,” lawsuits have arisen. Two recent suits, the WSJ reports on Monday, raise the following question: should hourly workers be paid for time spent responding to work calls or emails while off the clock?

Last month, three current and former employees sued T-Mobile USA Inc., claiming they were required to use company-issued smart phones to respond to work messages after hours without pay. In a March suit, a former CB Richard Ellis Group Inc. maintenance worker seeks pay for time spent after hours receiving and responding to messages on a work-issued cellphone.

The federal Fair Labor Standards Act says employees must be paid for work performed off the clock, even if the work was voluntary. When the law was passed in 1938, “work” was easy to define for hourly employees. As the workplace changed, so did the rules for when workers should be paid.

In the T-Mobile case, current and former employees say they were required to use company-issued smart phones to respond to work-related messages, including customer complaints, after hours without pay. When the workers reported the hours to management of the cellphone company, the lawsuit says, the employees were told nothing could be done and they should expect to work extra hours as part of T-Mobile’s “standard business practices.”

In a statement, the company said it complies with wage and hour laws, but doesn’t comment on pending litigation.

In another case, a former maintenance worker at CB Richard Ellis said he wasn’t paid for after-hours time spent receiving and responding to messages on his cellphone.

In the suit, John Rulli said he was handcuffed to his phone because the company required him to quickly respond to messages at any hour. CB Richard Ellis declined to address the specifics but said in a statement, “We believe this complaint is without merit and are contesting it vigorously.” The company said it complies with employment laws.

Dan McCoy, a lawyer at Fenwick & West who’s not involved in either case said employers should adopt policies to regulate smart phone use outside the office. Managers should contact employees sparingly, and make sure they are paid for responding, he said. “There is a practical approach to this,” he said.

Full post as published by Law Blog - WSJ.com on August 10, 2009 (boomark / email).