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Kates Nussman Rapone Ellis & Farhi, LLP

Your Blackberry - The Final Frontier in Wage and Hour Litigation?

Personal Digital Assistants (PDA's), like a Blackberry or IPhone, have become commonplace tools in our work and personal lives. And that's a problem. Many employers expect their employees to be accessible at all times of day and the old time card method of starting and ending the workday is now obsolete.

The result of the infiltration of PDA's is a new type employment litigation that attempts apply the federal Fair Labor Standards Act and state wage-and-hour regulations to work done when employees are not at work. One consideration for courts is whether the time spent checking PDA's on "off hours" is "de minimus" or insignificant, according to federal regulations regarding computation of time. Another consideration is whether the "continuous workday rule" should apply to checking PDA's. That rule says that employees should be paid from the beginning to the end of their day - when "principal activities of the job" are being performed. For example, putting on and taking off uniforms could be considered a principal activity and thus compensable.

The question of whether having to use and check PDA's for employment purposes qualifies as overtime has not been decided. However, cases are beginning to be filed close to home. A lawsuit was filed in 2009 against T-Mobile by employees sick of having to respond to company messages from their PDA's at all hours of the day. The case was eventually settled. Perhaps employers should consider rules for limiting the "electronic leash," such as not emailing employees during "family time" or during late evening hours.

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