Aug 19, 2009

When Does the Work Day End? When You Stop Answering Your Cell Phone

Last week, the Wall Street Journal reported on a couple of lawsuits filed by hourly employees who claimed that they weren't paid for time they spent responding to phone calls and text messages after work. In both cases, the employees said they were issued cell phones or smart phones by the company, and were expected to respond to calls and messages even after hours.

These cases seem fairly clear cut to me: Assuming the evidence backs up the employees' claims, they're entitled to pay. Under the Fair Labor Standardsa Act (FLSA), hourly employees must be paid for all time they spend working, whether the employer requires it or the employee puts in the hours voluntarily. The employees in these cases were responding to work messages and calls on equipment the company provided to them, presumably at least in part so they could do this type of work offsite and after hours.

If the employees were arguing only that they had to be "on call," the rules are a bit different. If, for example, an employee has to carry a pager or cell phone on the weekend and be prepared to respond if necessary, courts look at a number of factors to determine whether the employee is working or not. But in these cases, employees seek pay for all of the on-call time -- in other words, if the pager is on, the employees argue that the meter should be running. There's no dispute that once an employee on call actually gets a call and has to respond, that employee is working and must be paid. So, even under this line of cases, employees who are answering cell phone calls and responding to text messages are working.

Employers that issue portable communications devices -- like cell phones, BlackBerrys, or laptops -- to hourly employees could get into trouble here. In fact, some commentators recommend not providing this type of equipment to hourly employees, or at least requiring those employees to leave their equipment at work, to make sure that they aren't putting in time for which they aren't being paid (especially these days, when many employers have instituted furloughs or otherwise cut work hours as a cost-saving measure).  

If you want help creating policies for laptops, cellphones, and smart phones, pick up a copy of my book Smart Policies for Workplace Technologies (Nolo).