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BlackBerry time: When must you pay for employees’ off-duty PDA hours?

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in Employment Law,Human Resources

Nothing blurs the line between work and play more than a PDA.

Hand-held devices, such as BlackBerrys, Trios, iPhones, etc., make it easy for workers to check e-mail and do work at any time of day. And your nonexempt, hourly workers may demand to be paid for that screen-time.

Examples: After its employees balked, ABC News recently backed off its “no-pay-for-BlackBerry-time” policy and agreed to pay for “significant” time worked on the devices. Verizon is facing an overtime lawsuit from a Florida worker who says he worked 72 hours a week on his PDA.

So the big question is: When must your organization pay nonexempt employees for such off-the-clock work? There’s no clear-cut answer.

Courts interpreting the Fair Labor Standards Act (FLSA) have said that “insubstantial or insignificant periods of time” are considered de minimis and don’t need to be counted as compensable work time.

However, FLSA regulations say that working time of as little as 10 minutes per day should not be considered de minimis under the law.

Therefore, if a nonexempt employee uses his PDA outside of regular work hours and he winds up working more than 40 hours per week, you may have to compensate him for his overtime.

It’s your responsibility to control the after-hours use of such technology.

“The safest course of action is to provide these devices only to exempt employees,” says employment law attorney, Jon Hyman, a partner with Kohrman Jackson & Krantz in Cleveland. “But, if a company provides them to nonexempt employees, it should have a policy” that clarifies when employees can use the devices (see box).

Finally, remember that all hand-held devices track the time and activity performed by the user. So employees will have a clear record of their time answering work e-mails while lounging at Starbucks—a great benefit to the employee’s lawyer during his overtime lawsuit.

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