Our last post provoked an inquiry about what impact, if any, after-hours or off-day use of a BlackBerry^® or another personal digital assistant might have with respect to employees whom an employer treats as exempt under one of the federal Fair Labor Standards Act's executive, administrative, or professional exemptions.  The U.S. Labor Department's exemption regulations for these so-called "white collar" employees require that most such employees be paid on a "salary basis" in order to be exempt.  This is where the problem might arise.

Being paid on a "salary basis" means that the exempt employee regularly receives each pay period a predetermined amount of compensation which is not subject to reduction because of variations in the quality or quantity of the employee's work.  Subject only to a limited, specific set of exceptions, an exempt employee must receive the full salary for every workweek in which he or she performs any work, without regard to the number of days or hours worked.  To illustrate the potential consequences of PDA use, let's consider just three of the more-common exceptions to the "no-docking" rule:

•   Proportional deductions may be made for absences of one or more full days when the employee performs no work due to personal reasons other than sickness or disability;

•   Proportional deductions may be made for absences of one or more full days when the employee performs no work due to sickness, accident, or disability when the employee has not yet qualified for benefits under an employer's bona fide sick-pay plan, policy, or practice and when the employee has exhausted those benefits; and

•   An employee who performs no work in a workweek need not be paid the salary for that workweek.

The Labor Department has been known to apply the FLSA's "hours worked" principles in evaluating whether an exempt employee has or has not performed work on a day so as to preclude or permit a deduction from his or her salary on account of the employee's absence from the job that day.  Moreover, its Office of Enforcement Policy has said that no salary deduction could be made for a day when an employee called in sick but spent a half-hour reviewing files at home that day.

So, if using a BlackBerry^® or other PDA for job-related purposes is often "work" (though possibly it would sometimes be de minimis), and if an exempt "white collar" employee engages in such activities during a personal-day off, during a sick-day off, or during a vacation week, can he or she be said to have taken a full day off, or to have performed no work in a workweek?

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A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry^® devices and similar "personal digital assistants".  The officer contends that these activities entitle the group to an award of overtime compensation under the federal Fair Labor Standards Act.

The potential for these claims has been lurking for a while now, and the relevant FLSA principles are not new.  What has changed is this:  The explosion of 24/7 electronic communication has increased the frequency with which, and has expanded the circumstances in which, non-exempt employees perform after-hours and/or off-premises work.  Join this with the strict requirements of a 70-year-old law that was designed in and for a bygone era, and you have the recipe for a lawsuit extravaganza.

The question is not whether these activities are compensable FLSA "hours worked" for a non-exempt employee – they are.  However, conventional wisdom leads some to think that things like writing a text message or listening to a voice-mail involve too little time to worry with.  But the truth is that this so-called "de minimis" concept is perilously vague, ill-defined, and unpredictable under the FLSA.  No particular timeframe is necessarily small enough to be reliably considered de minimis, and in any event the per-occurrence amount of time is not all that the courts take into account.  Other considerations can include such things as:

•   The aggregate amount of an individual's time spent in these activities;

•   The aggregate amount of time spent by all of the individuals making claims;

•   The regularity of the activities;

•   Whether and to what extent capturing the time creates a substantial administrative burden and practical difficulty; and/or

•   Properly balancing FLSA policy favoring paying employees for even small amounts of time against the increased burden and difficulty of doing this.

Instead of hoping for a de minimis finding, the legally-preferable approach is to require a non-exempt employee to keep an accurate record of the time spent in the work.  This might be done, for example, on a special form designed for this purpose.  The employee then submits this record so that the activities can be counted along with his or her other work in order to compute the employee's wages.

Alternatively, cases and U.S. Labor Department interpretations dealing with analogous situations might arguably support developing a reasonable estimate of how long these activities take each day.  The employer would then reach an agreement or understanding with employees in advance as to how much time it will add to their hours worked to account for handling these duties.  Even so, it remains to be seen how the courts will react to this approach, and basing pay upon anything other than the actual facts always increases uncertainty for the employer.

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Chicago PDA Lawsuit.pdf (246.71 kb)