Thorns in the Blackberry Patch

Go to any coffee shop, public building, ride a train or take a bus and you see people's eyes glued to those tiny personal digital assistant devices (PDA) in their hands reading emails or taking care of some other work.  But can those people claim that they should be paid for their Crackberry habit? 

A police sergeant in Chicago is suing the city of Chicago for that exact reason, and Sgt. Jeffrey Allen argues his PDA connection means the city of Chicago owes him lots of overtime pay since he logged in on his PDA to continue working even though his shift was over.  Chicago Mayor Richard Daley called it "silliness in time of economic crisis."  But is it silly? 

The issue may not be as simple as Mayor Daley suggests. The outcome of this case will be decided based upon the Fair Labor Standards Act (“FLSA”), which governs wage and overtime provisions for American workers.  The first issue to be addressed will be whether an employee is exempt or non-exempt from overtime.  Exempt employees make the same salaries no matter how many hours they work during a week, so using a PDA from home at night is not an overtime issue for them. But when you're dealing with non-exempt employees, who are entitled to overtime for all hours worked over 40 in a workweek, the use of PDAs at night can result in possible overtime pay.  This means that hourly workers, like Allen, must be compensated for all time spent “working” at the request of the employer.  Employees who spend an insignificant amount of time, say two or three minutes checking e-mail in an evening, would generally not be considered to be “working” for purposes of the FLSA and would not qualify for overtime.  But what if the employee spends 10 or 15 minutes a day after work hours?  This is arguably “working” under the FLSA and could mean that the employee is entitled to be paid overtime.

Under the federal law this could mean the employer must pay the employees overtime, and possibly pay back pay from the date a lawsuit is filed, or three years if the employer knew what was going on.

The Chicago lawsuit should be a wakeup call to Employers.  It is imperative that all employers have a policy regarding the use of PDAs in their employee handbook.  Minor, Bell & Neal can review your employee handbook to be sure this issue is properly addressed to prevent surprise overtime obligations for your company.