Those smartphones and BlackBerrys that enable work anytime, anywhere are increasingly blurring the lines between work life and personal life introducing the sticky issue of when overtime is owed to employees.
The always-connected worker and the pressures of the uncertain economy have led many to feel they should always be working – because they can, thanks to the growing use of smartphones. That’s allowing work to bleed into evenings, weekends and even sleep, with some people taking their phones and BlackBerrys to bed with them.
And the situation becomes tricky for hourly employees, who qualify for overtime.
Overtime laws are abused by companies “on a daily basis,” according to some employment lawyers and in some cases, that has led to lawsuits; seeking pay for what is sometimes called “BlackBerry overtime” or “electronic overtime.”
For employers, “that’s an area of exposure, and it’s coming like a freight train,” said Greenberg Traurig attorney David Long-Daniels. By giving hourly employees BlackBerrys or access through iConnect or Citrix, “you’ve implicitly told them to work,” he said.
We advise companies not to allow hourly employees and others who qualify for overtime to use BlackBerrys or have remote access to their work computers, unless they’re told to record time when using the devices and the company has a system in place to record the hours.
Among the lawsuits over electronic overtime is one filed last year in U.S. District Court in Atlanta against Amerisave Mortgage Corp. by former employees. In the case, which has been granted conditional class-action status, senior mortgage processors claim that they routinely worked more than 40 hours a week without getting overtime and that Amerisave was aware that employees used their phones and other devices to answer calls and email but did not track the time. Amerisave denies those allegations.
Jason Zulauf and his brother, Jeffrey Zulauf, who are among the workers suing Amerisave, said they worked on commission and didn’t realize they could qualify for overtime.
Jason Zulauf said the computer system Amerisave employees used to work from home would automatically clock them out after 40 hours, but they were told by managers to “back down” their hours — or adjust them downward — so they could work more hours to make more commission.
An attorney representing AMetisave, Jeff Mokotoff, said the company has “clear, unequivocal written policies that require the employees to record all the time that they work.”
The Zulaufs said they worked as many as 15 to 16 hours a day, six days a week.
Amanda Farahany, who is the Zulaufs’ attorney, said, “Most people don’t realize the rights they have under the overtime laws.”
The overtime law, part of the Fair Labor Standards Act, was enacted during the Great Depression to “make it more expensive for an employer to make one person work more than to simply hire another person,” she said. “Over time, companies have simply eroded that law, and we’re back in a place now where employees are out of work.”
Companies call that increased productivity, a driver of economic growth.
Farahany contends that if companies follow the overtime law, “It brings people back to work. It worked in the Great Depression.”