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Who could have ever anticipated company issued smart phones could cause such a brouhaha in the legal arena?  Employers, generally believing the issuance of these expensive devices, along with the service, believe they are giving employees a perk.  Turns out, some folks are recognizing just how time consuming they can be – and they’re now suing those same employers for violation of the Fair Labor Standards Act and specifically, the failure to pay overtime for the time spent using the devices.  A. Harrison Barnes, attorney and founder, says the potential exists for this to become so big, that employers pull them altogether.

In one specific case, the Chicago Police Department is being sued by a sergeant who says he’s owed a considerable amount of overtime for his off the clock use of the department issued BlackBerry he received.  And that’s not all; there are several other similar cases  being filed around the country, says the founder.  So what does this mean for those employers who are offering up these convenient devices?  “We believed the benefits far outweighed any learning curve associated with becoming familiar with the devices and the various apps we allowed employees to download”, says one trucking company in New Hampshire.  “The reality is no good deed goes unpunished.  At a time when we couldn’t offer any substantial raises, we felt by offering unlimited use and access to these phones would allow many employees to cut their own personal cell accounts.  We placed no limits on the usage and only requested that they be available during their scheduled on-call time periods”.  Many companies severely limited the acceptable use of the devices they issued, says A. Harrison Barnes.  Many employers, in their efforts of reducing the potential for these very lawsuits, restricted use according to the employee’s status.  Nonexempt employees were to take calls only during normal working hours while exempt employees were expected to take the calls during “reasonable hours”.

A class action lawsuit was filed in 2009 in Wisconsin when a former real estate broker claimed he was ordered to reply to emails and return calls within a fifteen minute time period, beginning at the time the message was received, and with no consideration to the time spent replying to the messages and no consideration to the time of day or night the message received.

Many experts say these “quick replies” can quickly add up.  A. Harrison Barnes agrees and says he’s timed his own off-time use and was surprised at how much time is spent on reading and replying emails, checking voice mails and then returning phone calls.

To date, only case has been ruled with any merit and ironically, it was a cellular phone company that agreed to settle a case provided the details remain undisclosed.

This is sure to remain a hot topic for quite some time, but the downside is many employees who’ve come to rely on their company issued devices may soon have to surrender them and once again begin shelling out their own money for a monthly service bill.

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