BlackBerry Overtime is a Lawsuit Waiting to Happen?

By Devin Kent on 10 Jul 2008 02:03 am EDT
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BlackBerry VacationIn yet another example of the recent furor about BlackBerry overtime, legal experts are now warning employers that lawsuits are just around the corner. Attorneys are advising corporations to re-think who they give a BlackBerry to, and suggest that non-exempt employees -- in other words, those eligible for overtime -- shouldn't receive a phone.

Experts say that a disgruntled former employee is the most likely instigator of a lawsuit. Some lawyers are starting to make noise that BlackBerry overtime is grounds for litigation, and they would seek out these ex-workers. Paul Lopez, head of the labor and employment department at Tripp Scott, said that companies who don't ask employees to record their after hours use would be in an especially bad position to defend against a claim. There's a lot of after hours work, too -- 25% of respondents to a recent survey said they plan to use their BlackBerry for work even while on vacation, and a further 9% said their bosses expected them to at least keep up with email and voicemail, if not actively work, while on their vacation time. While most would agree that the latter is a bit extreme, the rest of it is up for debate: do you think after hours BlackBerry use should be compensated?

Topics: News & Rumors

29 comments

Queen4111

10 Jul 08

I know some doctors who DO NOT have or want a BB because the hospital would constantly page or email them for answers after hours.

Q

RetardZone

I thought that reading about how the iPhone 3G is suppose to be better than the Bold would be the stupidest thing I read this week, imagine my surprise that you would write something that would blow that out of water.

1) you don't know any doctors;
2) doctor's carry devices on them that are just as capable of receiving and sending messages as a Blackberry, it would only be a preference as to what the doctor wanted to use.

Small office doctors seem to use Treo's more than Berries and I haven't yet met a doctor that uses an iPhone. But I only meet docs on the golf course, so maybe the bad doctors without money use something else.

tallen269

I believe that working non company hours is a matter of choice and should not be compensated. However, any work that is done in the off hours should be taken into consideration for evaluation of the employee.

Anonymous

Some people are just obsessed with work and it wouldn't matter if they had a Blackberry or not... they'd be working after hours anyway. I have a Curve (non-company provided but they reimburse the monthly bill from Verizon) and I like the convenience of being able to check my email whenever I want. However, I also know how to ignore email, i.e., when on vacation. I guess what I'm getting at here is that the person/people complaining that they are getting email on their phone and want to sue because they aren't being compensated for after-hours work should just push the power button until the next morning. Example - last night after I left the office (around 5:30pm after getting in around 7:30am) I had 62 unread emails at around 8:30pm. I'd hear the phone chime telling me I had a new email but you know what I did - nothing. There was nothing in my inbox that was going to cause someone to die if I didn't answer it immediately. Anyone who expects that a person should work late and answer email, etc. for hours after "business hours" should really examine their priorities. I'd venture to say that those people are some pretty unhappy people. This isn't to say that there aren't times when I have been reading and responding to email at 10:00pm or 5:00am, because I have. You know those times when you're on a project and it's nearing its end and you have to get things finished up. Sometimes you need to put in some extra time to take care of business. But, these people who are saying they must have their phone with them 24X7 and check their email all the time, etc etc etc are just as guilty as the boss who expects it. Put the phone down and just walk away. Step away from the Blackberry - yes, it's addicting but put it down and walk away. It'll be there in the morning - maybe with a bazillion emails - but you're just copied on most of them anyway so who cares - read it, file it, move on.

Anonymous

I say take out all the Attorneys. That would eliminate 2/3 of all politicians. Then we can get back on track and make this country great again! :-)

yrrebkcalb__llib

I agree that you have to take responsibility when it is appropriate, which is all the time.

YOU know what's hot and what's not. When to turn it on and when to silence the beast. So make it silent and worry about tomorrow, tomorrow!

Now all I need is to get a BB, LOL!!! I'm awaitin patiently for the BOLD! This time I half to buy it myself but that's OK. Just wish it would get here already!

Recycler

Without a doubt. There should be compensation. I recently took a two day vacation and spent more than four hours working because of the need to check my BB. Back in the day this would have never happenned.

brinky

".....more than four hours working because of the need to check my BB."

The key word is need. Just because someone feels the need to check their BB doesn't entitle them to compensation.

dgburns

I would like to see some (ANY?) company's written policy that requires employees who are issued a Blackberry use it "off hours". It would seem a tough claim to prove in a law suit, the company can easily say "we never told you there was any REQUIREMENT that you use your Blackberry off hours".

This is MORE about employee's wanting to extract more money from their employers than it is about any company REQUIRING it's employee's uncompensated after hours. Come on, ANY non-exempt employee who answers the calls and emails after hours is doing so of their own free will, to expect company compensation is ludicrous. Any employee who accepts a company issued Blackberry (or any portable device) and doesn't demand clear usage and compensation guidelines is a fool.

unhappily married to a crackberry

i work for a fortune 10 company and i have a written policy of bb mandatory usage, stating must respond to all emails (we get over 2000/week) between hours of 7:00 am and 9:30 pm, and weekends too. i want to run the thing over. it gives me no "down time" and time i can unwind.

Morenina

If your job is providing you with a BlackBerry and are paying the bill for the data plan and so on, lets be honest, they are expecting that you will take care of any important e-mails received.

I am one of those people that are obsessed with work and check e-mail every 2 minutes. I do it because I expect for things to happen, I am expecting the mistakes and the request for information that comes along with being the liasion between the public, staff, and upper level management. I do check my e-mail, but I do not respond to it because that would create a habit of others expecting things to be done right away, I avoid the assumption unless it is a legitimate emergency, in which case they should dial 911, not e-mail me....lol...

As far as compensation, is the ability to check all of your personal e-mail addresses, possibly unlimited text message, MMS messages, IM and on the go and internet access not enough compensation for employees? Who no longer have to come out of their pocket to pay the cell phone bill? We all know that if given the opportunity, people will use company purchased equipment for personal use as well.

Now, if they are expecting for you to respond to every single e-mail even when its not important, not deadline related, not emergency, then they are building a case against themselves. This for the simple reason that everyone needs a break, that's why there is a such a thing as a schedule which allows you to perform your job within the allotted time. They are creating hostility when expecting your Blackberry to be your tracking device as if you were on house arrest. So that being said, when are you supposed to get a break from work if you're expected to respond to e-mail when you are out of the vicinity of the company and in the comfort of your home?

It would have to be evaluated according to how many e-mails you currently receive from work, if its an obscene number of e-mails, there has to be some kind of compensation. If you are volunteering to respond to e-mails after hours through your Blackberry, then you are creating an expectation that was never demanded from you and you should not be compensated nor have any right to complain. Simply state that your BB does not function probably and you are not interested in a replacement.

Law suit? Give me a break. I do not know of a company that just distributes BlackBerries for the heck of it and not demand that you have some responsibilities by accepting and even signing a contract. If you don't want to be in this situation, be upfront about it, ask what is expected from you by accepting a company purchased device? Ask if you have a choice of whether to accept it or reject it. If it is not a job requirement, what is the compensation of accepting to be available after hours?

Keep in mind that if you are the only person rejecting to accept his reponsibility, it can come back to bite you if there is a need to downsize the staff. My motto for work is to do what is expected from you (contractually), nothing more and nothing less unless extra perks or a salary increase is a possibility. As stated before, just put the BB down and walk away, don't allow for a device to drive you nuts, it will cause for you to constantly check your phone, those are precious minutes of your personal life that you could be enjoying.

jd moises 27

I believe that essential workers should be compensated for after hours Blackberry use. For example, most attorneys are constantly receiving different forms of correspondence, many of which is email, and are working on cases around the clock by doing so and responding. In the office, attorneys get paid for taking .5-1 to draft an email, so why shouldn't they when they do the same from out of work on a Blackberry? Now, a file clerk at the same law office responding to emails on his Blackberry should not be compensated because, frankly, how often would he be getting work related emails, etc.? In other words, certain professions do in fact require after hours work and much of that work is done on a Blackberry. For this type of work, workers should be compensated.

I compare it to logging into work from home. For example, my law firm has the ability for me to log into my work computer from home and actually access files and emails, etc. I do get paid overtime for doing so, so what would be the difference if I'm doing the same from my Blackberry?

There are of course people who have Blackberries and occasionally or in emergency situations may have to use their Blackberry for work (rarely for something minor). These people, I feel, should not be compensated.

In other words, I feel there should be a standard such as "if you put in 8 hours or more a week doing work related, well, work, then you should be compensated for those 8 hours as well as any time over that."

That seems like a fair solution to me.

Equinoc

Yet a new example of Lawyers running out of things to sue over and get their big 33% of settlements. I do feel that American employers have taken advantage of some technology to get more "productivity" out of workers for "free" by having the unwritten policy in the "gray area" of Blackberry mobility of working while not actually in the office. I find it amusing that, at least in my experience, telecommuting or working from home is frowned upon, yet the expectation is that you will "work" in some form "in between" when your in the office and when your not.

There is a real issue with the fact that employers wont allow workers to telecommute or work from home because if they cant see you, they know you must not be working, but its fine and non-verbally expected that you will work in your off hours via a mobile device.

jimharden

If you work sales and are on any type of commission, then ignoring emails may affect your pay. I notify people when I am on vacation, but emergencies do come up and people need to contact me. If I refused to ever check emails, then sales would be affected in the long run. To make good money, you must give good effort and service. On a related note, most people I know with Blackberrys also have personal email and text and phone messages that are not business related. The lawyers would have to be carefull not to forget this if they choose to get involved. I am sure that some botom feeders will get into this litigation, but then again they just follow societies lack of ethics and morals.

valiantstudio

I think that if your job "demands" that you respond to e-mails and work all hours of the day... then they should be paying you for it, or bumping up salary...

that being said I think most people are not being forced to respond to emails and are just doing it themselves..

if your salary employee and you are any type of manager then I'm sorry your job is to manage either your store or your team anyone who gets into that field knows its not a 9-5 job you work and do what you need to do to get the job done

TampaDude

If you find the duties of your job too onerous, such as being available during off hours, you are free to find another job. I support critical infrastructure for a large financial services company, and I'm on-call 24 x 7 unless I'm on vacation. I don't get overtime, but I get paid a high salary to compensate. My boss is cool about time off and comp time, too, so I don't worry about working some extra hours if necessary. Like I said, nobody has a gun to your head, forcing you to work at a particular company.

Anonymous

This BB issue does not apply to you nor anyone in a profession in which your input is critical to a company.

My boyfriend is a Senior Network Systems Engineer and he does about 90% of his job through a nextel. His job is to think with his brain rather than physically doing anything other than proofing, which you probably do as well for the FCC. It seems that this may sound familiar to you.

The BB issue for more for office politics where the employee is not in a position of management nor has much of an impact on how the company makes their living.

In regards to your comment about not being forced to work in a particular company, with the recent economic disaster, it is better to learn to adapt to the changes, than it is to work for an entirely different company all together. I might seem easy for you to see that way because of your position, but remember that every job comes with the retirement issue. I'm referring to the whole putting in 20 years (whether you're maintenance or mangement) and being able to retire.

Some individuals simply do not have a choice. Not to say that this is my case, as my job does not require nor demand for anyone to own a blackberry.

Just wanted to put in my 2 cents. This is in no way disrespecting your opinion. Please free to ignore and delte this reply.

llasso

It all depends on the job i guess. No ones really cares if they "donate" some extra time at work if they receive good salaries or comp time to compensate the extra work. I think the extra time shouldn´t be paid (but it should count for evaluations), as Tampa Dude says: "nobody has a gun to your head".

Anonymous

Yes, They really should. Time off is time off. The company only pays the employee for 8 hours a day, anytime after their shift is up, should definitely be compensated. If they expect you to keep up with stuff during your vacation, it's not really a vacation. They should definitely pay more for that. it's labor abuse.

rfarris

Hello you users and abusers!!
I have been a distribution manager for about 18 years and recently my employer purchased the Verizon 8830 WE for me and my coworker. As a manager I am used to getting calls after hours, before hours and most at the worst times. Alarms go off at the building or someone isn't going to make it in to work etc. Some of these are emergency type situations and being the one responsible I respond because that is what I am being paid for and I knew that when I said "I'll take the job". That being said I get about 60 to 70 emails per day and maybe 10 to 15 after hours and those after hours emails are mostly just a heads up for tomorrow. Although my employer doesn't expect me to answer 90% of those, the few that are real emergencies I answer. Having full use of a blackberry to use anyway I want without having to worry about a bill outweighs those few times that I have to stop what I'm doing and answer a call or an email. The blackberry was probably $300 to $400 and the service is costing at least $100 per month plus the extra battery and case, that is at least $1500 that I don't have to pay.
If it was expected that I answer every email at anytime day or night and if I didn't there would be major job implications, then I would voice my opinion and if that didn't help, I would look for another job.
In the end I say stop playing the victim and do your job.

jlmann99

It depends on the job. The name crack berry did not arise because people don't like to use them. I mean in the real estate business most of my work can wait until normal hours, however on the property management side it is a different story. Some calls to duty must be answered immediately whether on vacation or not or you risk losing a tenant or even the property. Point being most people chose to work after hours and it isn't really a necessity. I don't feel hours should be considered overtime. However, the line needs to be clear between employee and employer so there is no confusion.

Have a great day!

kiwibee

The guy in the picture looks like the actor from "Angel" and "Buff". Yeah!!

Anonymous

Most employees with blackberries are not eligible for overtime as they are typically considered exempt employees. This is only an issue for employees who are non-exempt and there according to federal and local labor laws must be paid for all hours worked.

MobileAdmin

This is a bigger issue then just Blackberry, it's a part of work/life balance so be it a mobile device or VPN connected on a home pc, employees and business for many places is now global and 24/7.

I work for a Fortune 100 financial services company and the past few years mobility has exploded. I'd say 95% of users are salary and not overtime elidgible but I actually had to include a slide in the Blackberry class I give monthly telling people to disconnect, use the auto On/Off function if you have to.

I support the entire email related infrastucture so our team is basically on call all the day 365 days a year. Like a previous poster said .. we get well paid and the blackberry is a perk to allow us to not have to stick close to home on rotation weeks and truely be mobile (and functional).

I frequently get white papers and I always find the studies on email replies a key to how the world views business communication. Presently most people EXPECT a repsonse THE SAME DAY they send an email. So that is why you see people on all sorts of devices .. be it business or personal we live in a always plugged in society and I think it's going to take a few years to guage the burn out factor from working / living like this.

I think part of the reason is the "threat" of knowing it's a weak job economy, the increase in out sourcing to India etc and people are doing everything "above and beyond" to feel they are a value added.

Thanks for reading

yarbleck65

When my gf and I recently went on vacation(her BB is company provided, I bought mine for my own use) she emailed everyone who is usually in touch with her during the day and told them all that she was going on vacation for a week and would be unreachable and left info on who to contact while she was gone for emergencies. We both had our phones off for 23hrs/day and I tell you what, it was the best vacation we have ever had. Nobody died, her company is still running nice and smooth, and we are MUCH happier people.
When we got back and she checked her email there was only a few emails/messages from people and not one of them was work related that would have required her immediate attention.

Now I do realize that there are some people who are in occupations that do require frequent after work contact, but these people are usually aware of that when they take that job/position and have no reason to complain when they need to check their BB's during non-work hours.

blackberry research

Hi everyone,
I am doing a reserach project as part of my post graduate studies in Occupational Psychology on the links between Blackberry usage pattern and preceived stress.
Are there any corporate blackberry users, who are willing to take a short questionnaire (by email)?
If you can help, I would be very grateful. Please email me (ahk007@yahoo.com)and I will send you a copy of the questionnaire.
Thanks

rayohope

If the company requires the hourly-paid employee to carry a company issued device, and the expectation is that they be available to it after business hours, then the overtime SHOULD BE COMPENSATED.

However, on the flip side of this issue... I have been a high-level IT tech for about 20 years now, and I have seen a HUGE number of people place large burdens of self-importance on themselves, even when the company does not require it. They insist that they must have a phone/email device issued by the company because they've just GOT to stay on top of things over the evenings and weekends. And we're talking about people at the most basic corporate level... mail room clerks, receptionists, etc. For the most part the company did not require these people to do this, they put that burden on themselves - in these cases, it should NOT be compensated time.

That's my 2 cents...

BenXP

I know that my company wouldn't compensate me for time spent following up on company email with my BB. Then again, I work for a small firm whose budget never before factored in employees working remotely using mobile devices.

Times are changing. If I found myself spending more than an hour a day after hours on my BB doing work, then I would definitely bring it up to my boss for discussion.

VHG

I think that a person should get paid if they work off the clock (if they are non-exempt). It is the Fair Labor Standards Act law. The mobility companies are making a fortune on non-payment of overtime.
Victoria
www.peltonlaw.com