Cell phones, laptops, and lawsuits

Workforce, Dec, 2002 by Maryann Hammers

If nonexempt employees at your company are required to carry cell phones, pagers, or laptops--beware. You may have to pay them overtime, or be at legal risk.

A recent survey by the Employment Law Alliance, a national network of labor and employment law attorneys, found that more than one out of five nonexempt workers believe that mobile technology forces them to take work home. And they believe that their employers are taking advantage of them. Almost a third said they spend at least three hours a week responding to work-related e-mail, voice mail, or pagers away from their regular workplace. Only 17 percent said they were paid for their work, and 22 percent said they didn't ask for overtime or compensatory time.

"Today's workforce is super mobile, but we are dealing with laws that were passed during the Depression--long before cell phones and pagers," says Robert Turk, who chairs the Employment Practice Group at Gunster, Yoakley & Stewart in Miami. "People are working in nontraditional places and during nontraditional work hours. If you have a hundred employees doing that, the liability can be large."

The problem is, the line between working overtime and being off-duty is blurred. In general, if an employee checks e-mail for a minute or two, answers a quick phone call, or responds to an occasional page, you don't have to worry about it--or to pay the employee. "But if it's interrupting their personal time to any great extent and is going on for more than a couple of minutes, that's compensable," says San Francisco attorney Stephen J. Hirschfeld, who heads the alliance.

"We seem to find more and more employees having so much pressure at the office that they need to return phone calls and e-mails at night, which can take several minutes or several hours," Hirschfeld says. "Technology has created a 24-hour workplace, but there are hazards in creating a 24-hour employee when that employee is not a member of management."

But what if you don't expect or ask employees to work at home--in fact, you even specifically forbid it--and they still do? "You can discipline them for insubordination, but you have to pay them time and a half for anything over 40 hours in a week," says Ann Kiernan, a New Jersey attorney with Fair Measures, a national company that trains managers in employment law. "That's why there's a big growth in class-action lawsuits in this overtime area."

To minimize liability, companies should have clear written guidelines, along with regular meetings with employees, regarding policies on unauthorized overtime. Insist that employees track and report the time they work at home.

Bottom line: "If your employees are performing work out of the normal workplace and out of normal work hours, you need to get a handle on it," says Atlanta-based attorney Chad Shultz, a partner in the national labor and employment law firm Ford & Harrison. "And if it's more than the temporary, occasional interruption, you need to pay them for it."