Using Your BlackBerry Off-Hours Could Be Overtime

Courtrsy: National Public Radio

A BlackBerry may be convenient, even essential for some jobs. A lawsuit in Chicago contends employees should be compensated for using the devices to work after hours.

Published: August 14, 2010
by Cheryl Corley


Can't put your BlackBerry down? Your boss may come to dread that if you're working while you're off the clock. A police sergeant in Chicago is suing the city. He says he's due plenty of overtime back pay because he logged in on his BlackBerry to continue working even though his shift was over.

Go to any office, any coffee shop, ride a train or take a bus and you see them -- people's eyes glued to those tiny devices in their hands getting rid of e-mails or taking care of some other work.

"I have a BlackBerry and I have an iPhone," says Catherine Merritt, who works at Ketchum Public Relations. She say her iPhone is personal; the BlackBerry is for work.

"Definitely it's a little bit of a crackberry," she says, with a laugh.
In her office in Chicago, Merritt was syncing up her BlackBerry with her computer so she could check in on work later. "I check it at least a few times probably an hour," she says.

As electronic leashes, mobile devices mean work can go on forever. Zev Salomon, a real estate developer with Belgravia Group in Chicago, doesn't mind, though. He always carries his BlackBerry, and it has a nickname.

"We affectionately refer to it as my binkie," he says.

You know, like a security blanket. It drives his wife a little crazy, but when Salomon goes to sleep, the BlackBerry goes to bed with him, too.

"The ability to continually watch what's coming in and going on in the various parts of the company just feels critical," he says.

Salomon says there's no financial compensation, but he thinks being so connected is just part of the world we're in.

'Doing The City's Work'
Maybe so, but Chicago police Sgt. Jeffrey Allen argues his connection means the city of Chicago owes him lots of overtime. His attorney Paul Geiger says it's a simple case.

"What we are saying is he's using this mobile device at the behest of the Police Department very routinely and very often off duty and not being compensated for all the time spent on the device doing the city's work," Geiger says.

The city gave Allen a BlackBerry when he worked in a unit determining which assets of criminals police could seize. Susan Prince, an attorney with Business and Legal Resources, says the deciding factor in this dispute is likely to be the Fair Labor Standards Act, which governs wage and overtime provisions for American workers.

"Basically, it comes down to whether an employee is exempt or non-exempt," she says. "Exempt employees, they make the same salaries no matter how many hours they work during a week, so using a BlackBerry from home at night is not an overtime issue for them. But when you're dealing with non-exempt employees, they have to be paid for all the time they work."

That means hourly workers, like Allen, and some salaried ones too -- like secretaries. Employees who spend an insignificant amount of time -- say two or three minutes of checking e-mail in an evening -- don't qualify for overtime.

But 10 or 15 minutes a day after work hours can add up under the federal law, and it can mean two years of overtime back pay from the date a lawsuit is filed, or three years if the employer knew what was going on.


Daley: 'We're Public Servants'

So what does City Hall think about the lawsuit?

Chicago Mayor Richard Daley called it "silliness in time of economic crisis."

He scoffed at the lawsuit during a press conference on a different subject last month. "This is unbelievable," Daley said. "We're public servants. If I asked for that, I'd be paid millions of dollars. We'd have to take all the BlackBerrys away from public servants."

Sean Rogers, a former labor relations chief for the IRS and former Washington, D.C., police officer, heads an arbitration firm. "I don't think any mayor would say that anti-discrimination laws are silly. These are similar laws," he says.

Rogers says although there have been a few lawsuits like Chicago's filed in the private sector, most settle. Rogers says employers handing out mobile devices don't seem to be focusing on potential costs.

"I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million," he says.

Attorney: Better BlackBerry Policy Needed

One solution is to give BlackBerrys only to employees who don't qualify for overtime. But Geiger, the attorney, says that would leave hourly workers like Allen out of the loop.

What's needed, Geiger says, is a standard policy: "If they say, 'Here, sign for this BlackBerry … and here are the BlackBerry rules. Rule No. 1: You do not use this device off duty.' Game over."

Allen works in a police district now and doesn't have a department BlackBerry. But his lawsuit is not only for him; it seeks overtime pay for other Chicago police officers who also used their BlackBerrys for work while off duty.

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