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Press Releases
Use of Smart Phones by Hourly Employees Presents Employment Law Challenges
Several recently filed lawsuits involving employer-issued smart phones (such as BlackBerry devices) highlight the challenge of meeting employers' business needs while complying with wage and hour laws.
A smart phone can be an incredibly useful device, allowing employees to access their work e-mails, calendars and contacts, and send and receive phone calls and text messages at any time, from any place. But despite the convenience and business necessity of using smart phones, employers should be aware that issuing such devices to hourly workers poses significant legal risks.
For example, in November 2008, an assistant store manager for AT&T Mobility filed a lawsuit against her employer seeking unpaid wages and overtime for reviewing and responding to work-related phone calls, emails and text messages on her employer-issued BlackBerry while “off the clock.” The lawsuit alleges that Gamze Zivali, an hourly employee, was required to spend 10-15 hours per week outside of her regularly scheduled shift performing such tasks, while she was not “punched in” to the AT&T timekeeping system. When Zivali complained to her manager, she was told that nothing could be done, and that she would just have to accept the work as part of AT&T's “standard business practices.” In July 2009, a federal judge certified the case as a class action on behalf of all similarly situated current and former non-exempt AT&T Mobility employees, dealing a major blow to the employer1.
Similarly, a class and collective action filed against T-Mobile in July 2009 alleges that the company issued smart devices to its retail sales associates and supervisors and required them to review and respond to T-Mobile related e-mails and text messages at all hours, whether or not they were logged in to the employer's computer-based timekeeping system. The suit seeks unpaid wages and overtime under the Fair Labor Standards Act and California and New York state labor laws2.
The challenge of issuing smart phones to hourly employees is not limited to employers in the cell phone industry such as AT&T and T-Mobile. For instance, real estate services company CB Richard Ellis was hit with a collective action lawsuit under the FLSA on March 13, 2009 which alleges that the company's maintenance employees were forced to work “off the clock” and in excess of 40 hours a week without being paid for using their employer-issued personal data assistants (PDAs), such as BlackBerrys, smart phones, and cell phones3.
Under the Fair Labor Standard Act's “de minimus” rule, employers may be able to avoid liability for time non-exempt employees spend using smart phones if the work only lasts a few seconds or minutes. Whether the time spent using the smart phone devices is “de minimus” may depend on the aggregate amount of time spent on such activities, the activity's regularity, and the practical administrative difficulty of recording the additional time.
While lawsuits involving the use of smart phones are a relatively new phenomenon, courts have found that as little as 10 minutes spent donning or removing required work clothes is not “de minimus” and must be paid. Also, workers are generally entitled to be paid for pre- and post-shift activities, such as starting up and shutting down machines and computers. Further, while there have been few key court cases on the issue, the Department of Labor has stated that whether an employee must be compensated for carrying a pager depends on the extent to which use of the pager interferes with the employee's personal time.
To be on the safe side, any employer that provides smart phones to non-exempt hourly employees should adopt and enforce policies and procedures to ensure it is in compliance with federal and state labor laws.
Silldorf & Levine, LLP represents current and former employees in a broad variety of employment disputes. Our firm also advises and counsels employers to ensure compliance with the law. If you have any questions about this article, please contact Silldorf & Levine, LLP for assistance.
1 Zivali v. AT&T Mobility LLC, No. 08-cv-10310 (S.D.N.Y. filed November 26, 2008).
2 Agui v. T-Mobile USA Inc., No. 09-cv-2955 (E.D.N.Y. filed July 10, 2009).
3 Rulli v. CB Richard Ellis, Inc., No. 09-cv-00289 (E.D.Wis. filed March 13, 2009).
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