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The BlackBerry as FLSA Risk



One more thing for employers to worry about.  According to National Public Radio, a police sergeant in Chicago is suing the city for overtime back pay because he regularly used his BlackBerry to continue working even though his shift was over.  According to his attorney:  “What we are saying is he’s using this mobile device at the behest of the Police Department very routinely and very often off duty and not being compensated for all the time spent on the device doing the city’s work.”

Exempt employees (who are usually salaried) are not entitled to overtime pay; therefore, their use of BlackBerry devices while not at work is not a problem.  But non-exempt employees, who are usually paid on an hourly basis and tend to be lower-level employees, must be paid overtime if they work more than 8 hours per day.  A few minutes every day can add up , and it can make an employer liable for up to two years of overtime back pay from the date a lawsuit is filed, or three years if the employer knew what was going on.   And these cases are usually brought as collective actions, creating hundreds or even thousands of plaintiff/employees.

My advice:  Employers who issue BlackBerrys or similar devices to non-exempt employees need to make sure they also have a written policy signed by each employee prohibiting workers from using them before or after work.   Employees need to understand that they cannot work more than 8 hours per day without authorization from their boss.

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