By BLR Founder and CEO Bob Brady
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BLR's founder and CEO explores the "Blackberries at the beach" phenomenon--the expectation of 24/7 availability even when on vacation. Do nonexempts need to be paid? Are exempts modern day wage slaves?
At BLR's last Employment Law Update conference, several speakers talked about the issue/problem/phenomenon of the "BlackBerry® at the Beach."
The reference is to people who compulsively check and respond to their e-mail, even when on vacation. The commentators' speculation was that someone, sometime, will bring a wage and overtime suit claiming that such activity is "work time" compensable under the Fair Labor Standards Act.
As far as I know, we are still waiting for that enterprising plaintiffs' lawyer to bring a class action, but all of the speakers urged attendees to examine their company policies.
The most basic issue is this: If employees are expected to check in, is their e-mail time compensable? And if so, would it be at overtime rates? When does it start and stop? What if there is no formal requirement, but you know they are putting in time? Does voluntary e-mail checking require payment?
The general wisdom is that a little is OK; a lot could be trouble. Voluntary is better, but not totally risk-free.
Nonexempt
Most of these questions apply to nonexempt employees, whom you must pay whenever you "suffer" them to work. So it seems inevitable that we will soon see attempts by nonexempt employees and their representatives to claim wages and overtime when the employee is required to be on call, either via e-mail or voice mail, and when the activity interferes with their off-the-job routines. Similarly, when e-mails or voice mails require immediate action, the time spent responding could be compensable.
Exempt
Exempt employees are different, of course. By definition, their wages are not absolutely linked to their hours. They can't be docked if they miss an hour, and they don't get overtime, either.
All this leads me to wonder if low-level "exempt" employees are the new "wage slaves," expected to work through lunch, be available weekends and nights, and be on call while on vacation. They are caught in the middle between nonexempt employees, who at least get to claim overtime, and bosses above them, who have much more control over their schedules, and who are well compensated for their efforts.
Many ambitious young professionals see this demanding lifestyle as a badge of honor, a rite of passage, the cost of success. They thrive on the challenge, and their complaints seem more like bragging. Others may be a lot less happy. They put up with it because they feel they have no choice.
This article originally appeared in the HR Daily Advisor.