Employees who read and send work email after hours – particularly using an employer-provided mobile device such as a Blackberry – may end up suing their employer for overtime hours incurred while performing work-related email tasks on the devices, outside of the course of the normal business day.
That’s the warning which has been issued this week by legal experts.
While no such lawsuit has been known to have been filed to date, plaintiff lawyers “have started making rumblings that it’s a potential claim,” said employment law attorney April Boyer.
Robert Brady, founder and CEO of Business & Legal Reports, agrees. “I’ll bet anything that a lawsuit is going happen,” opined Brady.
It’s already come close to happening when, last month, there was a showdown between ABC and three new ABC employees. ABC gave the employees a waiver to sign which stated that they would waive any compensation for after-hours work done on their employer-issued Blackberrys. When the three new employees refused, ABC took away their Blackberrys. Ultimately the employees’ union negotiated some changes to the waiver, which included that the employees would be paid for some work done after hours on their Blackberrys, although the waiver does still state that generally employees will not be compensated for after-hours emailing.
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All of this is a function of the rapidly decreasing distinction between work time and non-work time, as more and more employees (and business owners) carry mobile devices in their pocket or purse which allow them to be contacted at all hours by anyone with their email address. That email seems impossible to ignore when it’s right there on your mobile device, especially knowing that many people seem to expect a fast response to email, and so in some cases employees feel compelled to respond right away, particularly if the device has been provided by their employer.
The best way to avoid a potential problem is to either remove the temptation – if you are an employer don’t give mobile devices to employees if you really don’t need them to carry them, and if you are an employee, decline the mobile device if that is an option – or, to lay out very clear rules for work-related use of the device.
In fact, whether a mobile device is provided by the employer or not, if there is after-hours access to email, employees need to know, up front, if they are expected to respond to work email after hours and, if so, whether they can expect to be compensated for such after-hours correspondence.
Along those lines, legal experts are recommending that in addition to a clearly-written policy on the subject, employers should insist that employees keep a written record of any time spent, after hours, working on work-related email.
But it isn’t just employers who are protected by such tracking of after-hour email time – if you are an employee, you should be keeping track of the time you are spending after regular working hours both responding to work email, and taking or making work-related phone calls. You should be doing this regardless, but you should especially be doing it if you have been given a cell phone or mobile device by your employer, as the inference to be drawn by their giving you such a device is that they expect you to use it when you are out of the office.
Given the nature of our readers, I’m sure that many of you have stories about employer-provided devices, or employees using their devices after hours, as well as generally how such constant access to email has changed how you conduct business. We’d love to hear what your story is! Let us know below in the comment area!
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