This makes people more efficient, productive - and available. The legal question this is raising is whether the definition of compensated and overtime work should be adjusted to reflect the new reality.
Like the ownership of personal information, the ownership of time is becoming one of the looming battlegrounds of the technological workplace. Given the distributed nature of power, responsibility and opportunity, the trend would appear to favor compensation based on that distribution. JL
Lauren Weber reports the Wall Street Journal:
Now everyone has a smartphone and a lot of those employers at least tacitly suggest you be available 24/7, so courts are more willing to see that as company policy. Judges appear to be taking seriously allegations of uncompensated remote work, and have been more willing to certify the lawsuits as collective actions.
Company-issued smartphones have obliterated the line between the workday and off hours. For employers and workers, 8 p.m. emails from the boss aren’t just disrupting home life. They’re raising legal questions, too.
Several lawsuits have alleged that companies expect employees to work unpaid and off hours via iPhones, BlackBerrys or other digital devices. The number of suits—and legal opinions—is relatively small so far, but attorneys say a newly sympathetic attitude among judges, as well as coming changes to federal labor regulations, could open the door to more claims.
About 44% of Internet users regularly performed some job tasks outside the workplace last year, often on technologies like smartphones, according to the Pew Research Center. While almost half of workers surveyed said digital technology helped them do their jobs better, 35% said it increased the number of hours they work.
“The technology started with the pager, for emergencies,” said Linda Doyle, a partner in the Chicago office of management-side law firm McDermott Will & Emery LLP. “The executive assistant or the maintenance engineer had one, and it was used relatively rarely. Now it’s ‘Here’s a smartphone and I expect you to check it,’ even if that’s not said.”
The dearth of legal opinions on remote, technology-enabled work makes the area an uncertain one. References to BlackBerrys and smartphones began appearing in complaints less than a decade ago, and most have been pursued as individual complaints or have been denied class status
As a result, they haven’t proceeded as precedent-setting actions involving a large group of workers. In addition, cases that were certified as collective actions usually settled out of court, attorneys say, because it’s cheaper for a company to pay back wages than to engage in a protracted legal battle.
But the legal landscape is changing. Federal rules currently state that workers earning more than $455 a week, or $23,660 a year, may not be eligible for overtime pay. A worker’s duties, whether he or she is salaried or paid by the hour, and how much time he or she spends working during off hours can change the equation. In general, broad exemptions have curbed the number of workers who can pursue overtime claims.
New rules coming from the Labor Department as early as this summer are expected to raise the salary floor and sweep millions more Americans under the purview of the Fair Labor Standards Act, which protects the right of workers to overtime pay. Earlier this month, the agency submitted its proposal to the Office of Management and Budget, which will review it and then release it for public comment.
Once new rules are issued, workers may bring more suits like one filed in 2009 by salespeople at T-Mobile USA Inc. stores. They said they were given BlackBerrys and other devices and expected to work 10-to-15 hours a week off the clock, answering emails and text messages from customers and other staffers.
They alleged that T-Mobile required them to hand out business cards with their mobile numbers so that customers could contact them at all times. In 2010, T-Mobile paid an undisclosed amount to settle the suit.
“Our policy has always been that if employees work outside of their normal working hours, they must report that time in T-Mobile’s timekeeping system and they will get paid for it,” said spokeswoman Annie Garrigan.
The $455 weekly salary floor has limited similar claims, lawyers say. According to the White House, as many as 88% of salaried workers may currently be ineligible for overtime pay because of that rule, compared with 35% in 1975, when the floor was $250 a week. Last year, President Barack Obama directed the Labor Department to update overtime regulations, particularly the salary floor.
Observers expect the new rules could raise that floor to the vicinity of $50,000 a year. A department spokesman declined comment on the content of the proposal.
“People making $30,000 or less usually aren’t doing jobs that require them to have remote access [to work computers and systems]. But if you raise that to $55,000, you sweep in a bunch of people who are used to remote access,” said employee-side attorney Paul Lukas, a partner at Nichols Kaster PLLP in Minneapolis.
Employer-side lawyers say judges also appear to be taking seriously allegations of uncompensated remote work, and have recently been more willing to certify the lawsuits as collective actions. Previously, judges tended to rule that workers’ use of devices varied too much, said Ms. Doyle.
“Now everyone has a smartphone and a lot of those employers at least tacitly suggest you be available 24/7, so courts are going to be a little more willing to see that as company policy,” she said.Last year, a judge allowed some Chicago police officers to pursue their claims as a group after a sergeant named Jeffrey Allen sued the City of Chicago, alleging the police department issued personal digital assistants to him and others, then expected them to respond to communications “throughout the night and into the early morning hours while off duty,” according to the complaint.
A spokesman for the city said that officers have long been able to file for compensation for off-clock work, including for smartphone usage. Chicago spent about $100 million in 2013 on police overtime.
However, Paul Geiger, a lawyer for Mr. Allen, said there is an implicit expectation in units like the Bureau of Organized Crime, where Mr. Allen worked, that officers would be available at all times but not report that extra work. “They know that if they file for overtime, their job in that elite unit is gone,” he said.
The suit is set for trial in August. Unless the parties settle first, the judge’s decision in the case could help set ground rules for how employers approach expectations of off-hours work, Ms. Doyle said.
In another case, two satellite-dish installers sued their employer, DirectSat USA LLC, saying they weren't paid for time spent calling in to a dispatch office or downloading the day’s work orders. The case is moving forward in federal court in Maryland as a collective action. DirectSat didn’t respond to a request for comment.‘Now everyone has a smartphone and a lot of those employers at least tacitly suggest you be available 24/7, so courts are going to be a little more willing to see that as company policy’
Even if the boss doesn’t order workers to respond to email or handle other tasks during off hours, employers aren’t immune from lawsuits, say attorneys on both sides of the bench.
Labor-standards rules state that workers must be paid when employers allow work to take place. That means a company can be liable if managers know a staffer is doing some kind of work—not hard to determine thanks to the timestamps on email and other digital communications, said Mr. Lukas.
Employers should prohibit off-the-clock work and take measures to enforce those rules, or stop issuing workers smartphones and remote computer access, said Dan Getman, the attorney who represented the T-Mobile workers.
To curtail late-night email, Volkswagen AG ’s servers don’t send corporate emails to its Germany-based non-manager employees between 6:15 p.m. and 7 a.m. Yet there’s little chance of such policies taking hold broadly in the U.S., where even the law firms that pursue these cases find it challenging to enforce the rules.
“We discipline people for working off the clock,” said Mr. Lukas of his firm’s policies. “We pay them and we write them up. But who are those employees? They’re your best employees. They’re the ones that want the job done right. Your lame employee isn’t answering the phone at 9:30 on a Sunday night.”
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