Our Blackberried workforce raises another interesting question: is time spent outside the office e-mailing from a Blackberry compensable time under the Fair Labor Standards Act? According to a recent article by Jeffrey M. Schlossberg, Adjunct Professor of Law, Hofstra Law School, time spent outside the office may very well be compensable time, requiring the payment of overtime for non-exempt employees. Mr. Schlossberg correctly argues that because employers provide these technological tools with the understanding that employees will use them during off-work hours, the time spent is probably compensable, subject to a regulation that de minimus time is not necessarily covered. Those of us with smart phones know, however, that the time spent using them is never de minimus, and often obsessive.
For companies that provide Blackberries and other portable e-mail devices to their employees, this issue is one that is definitely worth considering in your next wage and hour audit.