Know the Law: Blackberry Usage for Non-Exempt Employees Outside Working Hours

Adam Hamel Headshot
Adam M. Hamel
Director, Litigation Department and Vice Chair of the Employment Practice Group
Published: Union Leader
February 8, 2010

Q:  My company gave me a BlackBerry® to use for my job.  It’s really convenient to be able to make calls and answer emails wherever I am, but I feel like I’m constantly working while checking messages around the clock.  Does my boss have to pay me for the time I spend on my BlackBerry®?

A:  These days, BlackBerrys®, iPhones® and other “smartphones” seem to be everywhere.  They make staying connected with the office a lot easier … maybe too easy.  Some smartphone users become “addicted” to constantly checking their messages.  And some employers take advantage of having their workers available no matter what time it is or where their employees are, whether at their kids’ soccer games or on vacation.

All this convenience may come at a price.  Under New Hampshire and federal law, “non-exempt” employees—non-managerial employees who are paid by the hour—must be compensated for all the time  they work.  The law is still catching up to the new smartphone technology, but many attorneys are advising employers that hourly employees must be compensated for using their smartphones when they’re “off the clock.”

A number of class action lawsuits, including a suit against T-Mobile, are working their way through the court system.  In these lawsuits, hourly workers who were required to use company-issued smartphones outside their normal working hours are seeking to recover overtime pay.  The T-Mobile employees claim that they were required to answer emails, text messages and phone calls from co-workers and customers during their off hours.  They say that when they complained to their bosses, they were told there was nothing that could be done, and it was just part of the company’s standard business practice.

Until the law in this area is clear, attorneys are counseling employers to think carefully before giving smartphones to their employees.  The safest approach is to give smartphones only to exempt employees—managerial employees who are paid a salary. When employers do decide to give smartphones to non-exempt employees, lawyers suggest that the employers implement clear policies for the use of the devices, to ensure that employees are being appropriately compensated for time worked.  For example, employers could require that employees leave the devices at the office when they leave for the day, or instruct employees to use the devices after-hours only when specifically instructed to do so, and to track the time spent using the smartphone.

If you are a non-exempt employee who has been issued a smartphone by your employer, make sure you ask about and understand your employer’s policy for using the device outside your normal workday.