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What do you do with employees who use electronic devices after hours – for work related purposes – and claim they are entitled to compensation under the Fair Labor Standards Act? This question is playing out far too frequently in the new digital age. Consider the following scenario, which is coming to a company near you.

The Acme company issues BlackBerrys to employees who want one. The company strongly encourages employees to use this device so they will be more accessible on work-related projects and even pays part of the BlackBerry usage fees each month. The company does not prohibit employees from using this device for their own personal use.

Bob Smith (a random, typical name, of course), an employee at Acme, works on average 40 hours per week while at work. He has been paid for that time. However, he constantly uses his BlackBerry from home in the evenings and on weekends for work-related purposes such as checking emails. Acme never paid for any time he spent performing work on the BlackBerry from home. He has never complained to anyone about not being paid for the work time he spent on his BlackBerry.

Unfortunately, Mr. Smith loses his job for poor work performance about a year or two after being provided with this device. Upset with that decision, he files a lawsuit against the company under the Fair Labor Standards Act (“FLSA”). He claims he should have been paid overtime for all the text messages and other work he did at home on his company BlackBerry. Naturally, the company is shocked to hear this for the first time. Does the company win? Or is Mr. Smith right and owed overtime? These questions, and more, will need to be addressed over the next several years in what has become an increasingly hot topic in the technology age.

From the company’s perspective, it will first need to determine if the employee is an exempt or nonexempt employee under the FLSA. If non-exempt, the next step will be to determine if any time spent working on the BlackBerry was compensable. If so, how much was compensable. Naturally, this determination will be difficult and expensive to make, especially since employees at Acme were not specifically prohibited from using the device for personal reasons.

As this story reveals, the company is better served by taking proactive steps before the lawsuit ever begins. For example, have a company policy which describes when and under what circumstances the BlackBerry should be used. To minimize a company’s exposure, and presuming it is accurate, the company should state that all employees not spend more than a “de minimis” amount of time checking messages from outside the office. The company should also require employees to report on their timesheets all time spent outside of work checking their work messages or performing other work-related tasks on the BlackBerry. To better monitor the situation, the company may also want to require all employees to get permission first to use their Blackberries after work hours.

Of course, for a small company, all of these things may entail immense administrative headaches. Thus, one easy way to address this issue in Texas is to only give BlackBerrys to employees who are exempt from the overtime laws. Depending on the nature of the business, some or all of these techniques could be helpful in avoiding potential FLSA exposure.

In addition to a BlackBerry or PDA (personal digital assistant) policy, the company should make sure its privacy policies explain there should be no expectation of privacy on any company-provided electronic devices. This will help guard against potential invasion of privacy lawsuits. For example, an employee may claim an invasion of privacy occurred when the company read through e-mails to determine how much time was spent on the BlackBerry for work-related purposes. This policy further addresses the unfortunate situation when dealing with an employee who downloads pornography on a company device and shares it with other co-workers (the employee who keeps on giving situation).

Overall, while a company cannot stop these types of lawsuits, a few preventative steps can certainly make the difference between winning and losing in an age where technology is changing how people work.

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