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Beware of the Thorns in the BlackBerry Patch

You see them everywhere—at Starbucks, in the line at the grocery store, sitting behind the steering wheel—people frantically tapping away at their BlackBerrys and other handheld devices that keep them connected to the Internet.

The device has become so common that it's spawned a new vocabulary. Users proudly call themselves "crackberrys" (Pisani, 2008), and the truly addicted may suffer from one of the newest ailments, BlackBerry Thumb (Sacco, 2008). Even lawyers have coined a new term—"BlackBerry overtime." And in recent months, BlackBerry overtime has increasingly been the topic of debate among legal experts.

On one side are the attorneys who represent corporations and other organizations. For them, the constant clicking of BlackBerrys and iPhones is the sound of an overtime lawsuit waiting to happen. Many of them, such as Jeremy Roth of the Littler Mendelson employment and labor law firm, have begun to warn their clients about the dangers of such claims (Baldas, 2008).

"We'll see it. It's only a matter of time," Roth has said. And some plaintiffs' law firms have been accused of actively seeking clients, even to the point of advertising for them (Baldas, 2008).

On the other side are the attorneys who represent employees. Many of them say the concerns about overtime claims are overblown, but concede the clicking could well be racking up work time that should be compensated.

"Employees have been put upon to do errands outside of work hours and they usually don't get reimbursed. So I can see where it would become a bigger issue with the advent of BlackBerrys," said Lisa Curry of the Deutsch Atkins law firm. "If they can show they spent a great deal of time reviewing e-mails, then they may have something there" (Baldas, 2008).

When the issue of the potential for overtime claims being brought by employees who use handheld devices for work-related communications was initially raised, the debate was purely academic. But a 2008 labor dispute fast-tracked the discussion from hypothetical to real-life application. Earlier this summer, ABC News tangled with the Writers' Guild of America after the company wanted three new writers to sign the usual waiver saying they would not be paid for checking their company-issued BlackBerrys after normal working hours. The ensuing spat resulted in ABC stripping all writers of their company-issued BlackBerrys (Stelter, 2008; Wulfhorst, 2008).

ABC's position was that it did not want to pay time-and-a-half for someone to spend a minute checking his BlackBerry. The Guild argued that a momentary e-mail check was not the problem. The problem arose if the writers were asked to write material or perform other similar work from home. That work, said Guild representative Lowell Peterson, should be compensated (Stelter, 2008). The two sides settled when the waivers were reinstated with provisions that writers would be paid for substantial work, not for checking e-mails after hours (Pisani, 2008).

Then, in July 2008, a lawsuit was filed in Tampa, Florida, alleging that Verizon Communications and a subcontractor had violated the Fair Labor Standards Act (FLSA) for failing to pay overtime. The plaintiff is a "personal account manager" who agreed to work from 9 a.m. to 9 p.m., Monday through Saturday (a total of 72 hours a week). The job is done from home using a company-provided BlackBerry (Stockfisch, 2008).

Both the ABC dispute and the lawsuit brought against Verizon illustrate the potential risk of overtime claims employers face from BlackBerrys, cell phones, laptops, home-based PCs and any other devices used to benefit the employer after working hours.

Employers should bear in mind that the FLSA generally requires that nonexempt employees be paid for all work performed after hours that benefits the employer. And remember that all those devices, and others, track time and activity in one way or another.

"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," Roth said. "If the employee says, 'Let's take a look at my BlackBerry,' you now have a record. If it's a text message or a Wi-Fi at Starbucks—if they're nonexempt and they're off the clock, that's a problem for employers" (Baldas, 2008).

The potential problem goes even deeper, said John Thompson, an expert in wage-and-hour law at Fisher & Phillips. "We've never seen anything like it. Just the question of what is work and what isn't is a practically endless question," Thompson said. "It is going to drive to the surface all kinds of issues that nobody's ever thought of before" (Wulfhorst, 2008).

Even though the claim may seem to arise from a minute here and a minute there, don't underestimate the potential financial impact of such a claim. If there is a violation, said Joe Goodwin, a management consultant with F & H Solutions Group, it is "automatically the employer's fault." If the violation is willful, the claimant will be entitled to back pay for up to three years or as far back as the violation occurred (whichever is shorter), liquidated damages equal to the back pay and attorney's fees (Goodwin, 2008).

Goodwin demonstrated the math: "A cursory running of the numbers goes like this: employer misclassifies 3 jobs and pays no overtime for three years; employees worked an average of only 2 hours overtime a week, but 'frequently' worked through lunch; employer has no time records for these employees; average rate of pay for employee is approximately $35,000/year. Three employees times 2.5 hours per week times 156 weeks equals 1,170 hours of overtime. At approximately $25/hr. overtime rate, that's $29,250. Double that for liquidated damages, and you're close to $60,000. Add in plaintiff attorney fees of at least $30,000, a similar defense cost, and you're upwards of $120,000! All for the misclassification of only three employees" (Goodwin, 2008).

And don't forget, some states have laws that can be even more punitive for employers who violate their wage-and-hour laws.

Corporate attorneys, well aware of the math, have several recommendations to help employers avoid a thorny BlackBerry problem. Some advise providing BlackBerrys only to exempt employees (Baldas, 2008). But that may not be practical given a particular situation. Other lawyers suggest instructing nonexempt employees to keep track of and report any time spent using BlackBerrys or other such devices on work matters and placing limitations on the use of the gadgets after hours (Holt, 2008).

Employers should also make sure their workers are correctly classified as exempt or nonexempt, said Daniel Bretz of the Clark Hill PLC law firm. They should also establish policies that cover the use of BlackBerrys, other electronic devices and the checking of e-mail from outside the office. Those policies, Bretz said, should be monitored and enforced. But the best defense is to get good advice up front, he said ("Employers Should," 2008).

Documents used in the preparation of this article include the following:
• Baldas, T. (2008, April 28). Overtime suits may ripen with BlackBerrys. The National Law Journal. Retrieved from law.com
• Employers should be wary of "BlackBerry overtime." WWJ Newsradio 950. Retrieved from wwj.com
• Goodwin, J. (2008, February 25). Wage-hour lawsuits: Potential major liability for most employers. F & H Solutions Group. Retrieved from fhsolutionsgroup.com
• Holt, S. (2008, May 17). Keeping your employees in the loop via BlackBerry may lead to overtime litigation. Delaware Employment Law Blog. Retrieved from delawareemploymentlawblog.com
• Pisani, J. (2008, July 9). Workplace BlackBerry use may spur lawsuits. CNBC.com. Retrieved from cnbc.com
• Sacco, A. (2008, June 26). Should BlackBerry users demand overtime pay? PCWorld. Retrieved from pcworld.com
• Stelter, B. (2008, June 23). ABC and writers skirmish over after-hours e-mail. New York Times. Retrieved from nytimes.com
• Stockfisch, J. (2008, July 11). Verizon, contractor face suit on OT pay. Tampa Tribune. Retrieved from tbo.com
• Wulfhorst, E. (2008, June 25). BlackBerries, blogs create overtime work disputes. USAToday - Reuters. Retrieved from usatoday.com