A monthly smartphone (BlackBerry, iPhone, etc.) data plan can cost between $20 and $60 per month in the US, depending upon your carrier. But, could it also cost you $50 or more per hour?
It might -- if your hourly employees use a smartphone during "off-hours."
Last month, a law suit was filed in the Eastern District of New York claiming that hourly employees should be paid for their work responding to email after business hours using smartphones. The 1938 Fair Labor Standards Act clearly states that employees must be paid for work done, even if the work is voluntary. And, New York Labor Law requires premium overtime pay. So, is responding to an email work?
"The complaint in Agui v. T-Mobile alleges that employees were issued smartphones and were required to review and respond to communications (telephone calls, conference calls, emails and text messages) from other employees of T-Mobile at all hours. ... The total additional time employees spend "off-the-clock" working was up to 15 hours according to the complaint" reported the Fair Labor Standards Act blog. Not only is the suit for the missing wages and overtime, it is also for "liquidated damages, costs and attorney fees" as allowed by the FLSA.
Assuming 15 hours a week at $50 per hour, the $750 weekly labor costs of using a BlackBerry could far exceed the cost of a data plan. (Overtime would increase the amount.)
"The use of pagers once raised similar issues," the Wall Street Journal reported today. "The Labor Department has said that workers generally don't have to be paid for carrying pagers, unless they get buzzed so often they can't use on-call time for 'personal pursuits.'"
So, you may not have to pay a person for carrying a BlackBerry. But, what if an employer expects an employee to respond to emails in a timely basis?
The safest thing may be to update your personnel policy now. It makes sense to require an employee should to log any actual time worked to respond to emails or to attend a web conference. But, a policy may also state that employees must receive specific permission from a manager to work before actually working. Another idea may be to put a special phrase in an email subject, such as "READ NOW," for any message that should be read during "off-hours" time, while the rest can wait until regular business hours. Whatever you do, the policy should be clear.
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