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Is BlackBerry use compensable time?

by on
in Small Business Tax Deduction Strategies

Q. We provide PDAs to virtually all our employees, some of whom are nonexempt. This enables them to send and respond to e-mails at all hours of the day and night. Does an employee’s time spent on his or her PDA outside of work count as hours worked?

A. There is no clear-cut answer to this question. Nothing blurs the line between work and play more than a PDA. Before deciding whether time spent by nonexempt employees checking e-mails off-hours is compensable, several questions must be answered:

1. How much time is spent? The Fair Labor Standards Act permits employers to disregard and not pay employees for off-hours de minimis time. Time is considered de minimis if it is insubstantial or insignificant, cannot as a practical administrative matter be precisely recorded for payroll purposes, is no more than a few minutes in duration and where the failure to count such time is justified by industrial realities.

2. Is the employee checking e-mails of his or her choice,
or is the employee essentially expected to be on-call 24/7?

3. Does the employer require the employee to carry a PDA,
or does the employee choose to do so as a matter of personal convenience?

The safest course of action is to provide these devices only to exempt employees. But, if a company provides them to nonexempt employees, it should have a policy in place stating that nonexempt employees who check e-mails off-the-clock do so of their own choice, and that the time spent will not be compensated.

Of course, such a policy is not foolproof, and businesses that make it possible for employees to remain connected off-duty are taking a risk that the time might count as hours worked.

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