Smartphones complicate tracking, paying overtime

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ATLANTA — Those smartphones and BlackBerrys that enable work anytime, anywhere are increasingly blurring the lines between work life and personal life – and introducing the sticky issue of when overtime is owed to workers.

The always-connected worker and the pressures of the uncertain economy have led many to feel they should always be working – because they can, thanks to the growing use of smartphones. That’s allowing work to bleed into evenings, weekends and even sleep, with some people taking their phones and BlackBerrys to bed with them.

The situation becomes tricky for hourly employees, who qualify for overtime.

“We’ve gotten into a place in our culture where the more you work, the better it is, and the more you should be proud of it,” said attorney Amanda Farahany. “And so people don’t want to assert their overtime right.”

Overtime laws are abused by companies “on a daily basis,” she said.

In some cases, that has led to lawsuits, seeking pay for what is sometimes called “BlackBerry overtime” or “electronic overtime.”

For employers, “that’s an area of exposure and it’s coming like a freight train,” said Greenberg Traurig attorney David Long-Daniels. By giving hourly employees BlackBerrys or access through iConnect or Citrix, “you’ve implicitly told them to work,” he said.

Long-Daniels advises companies not to allow hourly employees and others who qualify for overtime to use BlackBerrys or remote access to their work computers unless they’re told to record time when using the devices and the company has a system in place to record the hours.

At UPS, employees have a designated number of hours they can work in a day, but in a few cases might also have remote access, said spokeswoman Susan Rosenberg. “That’s the responsibility of the individual and their supervisor or manager to make sure the amount of time is adhered to,” she said.

Coca-Cola Co. says its nonexempt or hourly employees “are to be paid for all time worked,” including time spent working on laptops or BlackBerrys outside of regular work hours. Those in hourly positions must get approval from managers before working outside of regular business hours, according to Coca-Cola spokeswoman Amanda Rosseter.

Company policies advise employees “to use good judgment” when considering whether to contact colleagues outside of working hours, she added.

Among the lawsuits over electronic overtime is one filed last year in U.S. District Court in Atlanta against Amerisave Mortgage Corp. by former employees. In the case, which has been granted conditional class-action status, senior mortgage processors claim they routinely worked more than 40 hours a week without getting overtime and that Amerisave was aware employees used their phones and other devices to answer calls and e-mail but did not track the time.

Amerisave denies those allegations. The discovery period just ended in that case.

Jason Zulauf and his brother, Jeffrey Zulauf, who are among the workers suing Amerisave, said they worked on commission and didn’t realize they could qualify for overtime.

Jason Zulauf said the computer system Amerisave employees used to work from home would automatically clock them out after 40 hours, but they were told by managers to “back down” their hours – or adjust them downward – so they could work more hours to make more commission.

An attorney representing Amerisave, Jeff Mokotoff, said the company has “clear, unequivocal written policies that require the employees to record all the time that they work.”

The overtime law, part of the Fair Labor Standards Act, was enacted during the Great Depression to “make it more expensive for an employer to make one person work more than to simply hire another person,” Farahany said. “Over time, companies have simply eroded that law, and we’re back in a place now where employees are out of work.”

Companies call that increased productivity, a driver of economic growth.

Farahany contends that if companies follow the overtime law, “It will bring people back to work. It worked in the Great Depression.”


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