Non-Exempt Employees Entitled To Overtime Compensation For Using Company Issued Blackberry or Other PDA While They Are Off The Clock
Under both the federal Fair Labor Standards Act and the California Labor Code, employers must pay non-exempt employees time-and-a-half of their regular rate for all overtime work for which they are employed—that is, all time in excess of forty hours per week. The broad meaning that has emerged for the term “work” from the Supreme Court is loss of an employee’s time that is “(1) controlled or required by an employer, (2) pursued necessarily and primarily for the employer’s benefit, and (3) if performed outside the scheduled work time, an integral and indispensable part of the employee’s principal activities.” Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir.2008) (citations omitted).
An employer can be liable for overtime wages to a non-exempt employee for checking and responding to email through the employee’s Blackberry or other PDA if the employer provides the employee with a company issued Blackberry and expects that the employee respond to messages received, the employee is responding to emails necessarily and primarily for the employer’s benefit, and responding to emails are an integral and indispensable part of the employee’s principal activities. Accordingly, the general rule is that an employee should be paid for using it.
Nonetheless, even if the employee’s off-the-clock activities are an integral and indispensable part of the employee’s principal activities, an employee is not entitled to overtime compensation if that time is de minimis. Lindow v. United States, 738 F.2d 1057, 1063-64 (9th Cir. 1984) (finding plaintiffs’ claims of spending an average of seven to eight minutes a day reading log book and exchanging information de minimis because of administrative difficulty of recording time and irregularity of additional work performed). Thus, “in determining whether otherwise compensable time is de minimis, [courts] consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Id. at 1063.
An employer can argue that use of the Blackberry is de minimis because it is so miniscule that, as an administrative matter, it would be too difficult to record for payroll purposes. Courts, however, have rejected this argument when the claims, even though minimal on a daily basis, when aggregated, amounted to a substantial amount of time. See Gomez v. Lincare, Inc., 173 Cal. App. 4th 508, 527 (2009) (finding plaintiffs’ claims not de minimis because plaintiffs regularly responded telephonically to customer pages every evening and weekend, which amounted to an average of six and nine hours a week). Moreover, “[a]lthough it may be difficult to determine the actual time” the employee takes to read and respond to emails, “it may be possible to reasonably determine or estimate the average time.” Rutti v. Lojack Corp., __ F.3d __, 2009 WL 2568661, *11 (9th Cir. 2009).
Picture from http://www.msnbc.msn.com/id/10989832.
