New lawsuits: Should workers be paid for after-hours email/calls on mobile devices?

In two recent lawsuits (one filed in New York against T-Mobile USA Inc., and another filed in Wisconsin against CB Richard Ellis Group Inc.), former and current employees are claiming they should have been paid for time spent after hours using company-issued cell phones to respond to work calls and/or emails.1038397_3g_smartphone_isolated_on_white_with_clipping_path

The proliferation of personal technology has made individuals more accessible at all hours of the day, which in turn lends to blurring of work and free time.  An employee doesn’t have to be at the office to be accessible anymore.  It used to be that only high-level, managerial and executive employees had access to technologies that tied them into the office network 24/7.  However, as communications technology gets cheaper, smart phones and similar devices – as well as the 24/7 access to office networks, bosses and co-workers that comes along with them – are now available to many more workers, including hourly workers.

The federal Fair Labor Standards Act requires that “non-exempt” employees be paid for work performed off the clock.  High-level employees are often exempt from this requirement, but hourly workers normally are “non-exempt”.

These two federal cases are among the first addressing pay for after-hours cell/smart-phone use by hourly employees.  It will be interesting to see how the cases play out.  The courts could decide pay is due.  Or, the courts could decide the work performed was so minimal that pay is not due.  The latter tact would mirror what courts have decided in many cases involving pagers.  In those cases, workers generally don’t have to be paid for carrying pagers unless they get paged so often they can’t use their time for “personal pursuits.”

In the meantime, employers should adopt policies to regulate smart phone use after hours and outside the office.  Employees should be contacted as little as possible, and employers should make sure such employees are paid for responding.


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