From: The Columbus Dispatch
By: Kelly Yamanouchi, Atlantic-Journal Constitution, Monday, July 9, 2012
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
that 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.
And 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.
But 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 attorney
David Long-Daniels. By giving hourly employees BlackBerrys or remote access to workplace computers
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 the workers are told to record
the times when they use the devices, and the company has a system in place to record the hours.
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 that they routinely worked more
than 40 hours a week without getting overtime pay, and that Amerisave was aware that employees used
their phones and other devices to answer calls and email but did not track the time. Amerisave denies those allegations. The discovery period just ended in that case.
Jason Zulauf and his brother, Jeffrey, 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 that 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 earn more in commissions.
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 Zulaufs said they worked as long as 16 hours a day, six days a week. “We had no life,” Jason
Zulauf said. “It took a lot of time away from our families.”
Farahany, who is the Zulaufs’ attorney, said that “most people don’t realize the rights they
have under the overtime laws.”
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.”
The Amerisave case follows similar cases in other parts of the country, including one filed
against T-Mobile USA Inc. in 2009, in which employees and former employees alleged that they were
given company BlackBerrys or smartphones and “required to review and respond to T-Mobile-related
emails and text messages at all hours of the day, whether or not they were punched into T-Mobile’s
computer-based timecard system.”
In a complaint filed against commercial real-estate firm CB Richard Ellis, an employee claimed
that he and other employees were given BlackBerrys and other devices to access work-related
emails.
