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Employers Beware: Smartphone Requirements Could Result in Lawsuits

Employers that require non-exempt hourly employees to use smartphones (PDAs, i-Phones, Blackberries, etc.) and respond to e-mail messages and phone calls during after-work hours might be susceptible to lawsuits for violations of the Fair Labor Standards Act ("FLSA"). As reported in a recent Wall Street Journal article, two lawsuits have been filed in federal district courts in Wisconsin and New York, by employees, based on smartphone use requirements and other alleged violations.

In both suits, the employees allege they are entitled to overtime pay for the required use of smartphones to respond to e-mails and other inquiries outside of work hours. Increasingly, smartphones are not just being used by CEO's and attorneys. As one commentator in the article noted, smartphones are also being used by non-executive level employees. In one of the federal court cases, the employees are maintenance workers and in the other case, the employees are sales representatives for a mobile communications company. In today's economy, employers are trying to find methods to increase productivity without expanding their workforce – an attempt to do more with less. Technology can make accomplishing more with fewer workers possible.

Legal commentators believe the main the issue the courts will have to resolve is whether or not the employers' smartphone use requirements constitute "work" under the FLSA. They note similarities between smartphone use and earlier cases involving pagers and "on-call" requirements. The FLSA was passed in 1938 when "work" was defined much differently than it is in today’s economic and technological climate.

These lawsuits come at a time when President Obama is increasing the resources necessary to enhance oversight and enforcement wage and hour rules. The recently released 2010 budget includes an increase in funds which enhances the Department of Labor's budget for the wage and hour division by billions of dollars. The additional funds will help to increase enforcement of the FLSA wage and hour laws.

In light of the recent lawsuit trend and increased funding for wage and hour law enforcement, employers should consider reviewing their smartphone use policies, or if they do not have a policy, they may want to consider issuing one. If you have any questions about the FLSA or your smartphone use policy, please contact the labor and employment attorneys at Bingham McHale for more information.

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