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Smartphones, E-Mail and Overtime Laws

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By Neetal Parekh on August 12, 2009 12:50 PM

You clock in and work all day.  Then you clock out, go home and answer calls, reply to text messages and emails on your phone all night.  Should you be getting paid for overtime?

Just last month 3 individuals sued T-Mobile on the basis that they were required to respond to work messages after hours using their company-issued smartphones.  On submitting the extra hours to management for compensation, they were told that they should expect to work the extra hours as part of T-Mobile's "standard business practices."

And that's not the first case of technology-meets-overtime-laws, this past March a similar suit was brought against CB Richard Ellis Group, Inc. in which a maintenance worker sought pay for receiving and responding to messages on his work cell phone after hours.

Will these claims hold water in court?

Judging by the fact that courts have interpreted the federal law to require police officers and other workers to be compensated for time taken to wear and remove uniforms---these lawsuits for overtime are not out of left field.

The governing federal law is the Fair Labor Standards Act (FLSA) which requires hourly workers be paid one-and-half times their hourly wage for time worked beyond the standard forty-hour work week.   Note, that only nonexempt employees are eligible for overtime time for employers covered by FLSA.

One question that courts will look at is whether the after-hours wireless communications constitute 'work' and are required or expected actions by the worker. 


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