http://www.washingtontimes.com/news/2008/jun/30/workday-never-done/
Monday, June 30, 2008
Workday never done
Whitney Stewart (Contact)
Beside a stack of poker chips and a hand of cards, a BlackBerry lay on the green felt table. When radio producer Cameron Gray vacations in Las Vegas, he keeps his BlackBerry on hand to track the hundreds of work e-mails he receives every day. But the technology that helps him keep tabs on work is also hurting his ability to leave work alone. He checks for e-mails constantly - even between poker hands - when he's on vacation, a habit his wife, Stacey Kane, 38, laughs about and calls "excessive."
But it's the blurring of work and private lives that has legal professionals discussing implications for overtime pay.
"Literally, I wake up, turn [the BlackBerry] on, and it's always the last thing I turn off before I go to bed," said Mr. Gray, 36, who lives in Alexandria and produces XM Satellite Radio's election show, Potus '08.
Mr. Gray is one of the millions who got a smartphone last year - his was provided for him through his job - and whileit's improving his productivity on the job, it also adds work timeevery day - in sporadic minutes when he's at home or on vacation and stops to reply to an e-mail.
"It also gets in the way of other life," he said. "It forces you to do the work because you can't have it and get something important and not do something with it."
He isn't alone.
A 2006 study at the Massachusetts Institute of Technology Sloan School of Management reported that smartphone use, enjoyed for its ability to increase workplace efficiency even from outside the office, resulted in most of the people surveyed habitually checking work e-mails on nights and weekends. JoAnne Yates, MIT Sloan School of Management deputy dean, said many people checked their e-mails as often as every seven or eight minutes. They did so because their colleagues did the same, they said.
The MIT study looked at the impact of social pressures in the workplace on people's e-mail habits. Interviews also revealed that some people tried to hide their frequent after-hours e-mail checking from their spouses by doing it in the bathroom, Ms. Yates said.
"There's the Crackberry thing," said Dante Chinni, director of Christian Science Monitor's Patchwork Nation Project. Crackberry won Webster's New College Dictionary staff's word-of-the-year contest in 2006 and describes people addicted to their BlackBerrys. "There is some truth to that."
He calls his BlackBerry "the ultimate blessing and curse tool" because it, like no earlier kind of technology,blurs the home-work distinction.
"At some point, everybody's going to need to go to a retreat somewhere and go ice fishing and unplug for a little bit," he said.
Mark Thierman, a class-action labor attorney from Reno, Nev., said technology has both freed employees, once tied to a desk, to travel and also kept them available to employers who save money by not paying for unproductive time.
"It's a question of mobility," he said. "If you can sit by the beach and answer your BlackBerry, then that's a great thing. In the old days, you had to pay them to sit by the phone."
For Don Meyer, who runs his own Washington-based public relations firm, that flexibility translates into five or six hours a day on his BlackBerry when he works on the road.
"I'd say my productivity has increased exponentially," he said, "but it's not so much that I'm working longer, it's that I have certain capabilities of the BlackBerry with me all the time."
With the smartphone phenomenon changing everyday office operations, it's those small increments of time spent sending work-related e-mails in the middle of a movie or from the golf course that has lawyers and officials in the Department of Labor discussing technology-inspired fair wage and labor litigation.
"The big question is, 'What's work?'" said Tammy McCutchens, a Washington-based shareholder in the firm Littler Mendelson.
For nonexempt employees - those eligible to receive overtime pay and typically paid on an hourly basis - time spent working either in or out of the office should be remunerated, she said. And that goes for e-mailing from a BlackBerry.
"It's crystal clear that if you're checking a work e-mail or responding to a work e-mail, that's work," she said, adding that she constantly reminds her secretary to resist answering work e-mails after hours or to keep track of her time worked. "They should be paid for that time."
Employers who don't pay overtime for work-related, after-hours e-mailing run the risk of getting sued. In fact, several successful class-action lawsuits against bank employers for unpaid overtime have factored in the use of smartphone technology.
Mr. Thierman won a $108 million settlement for current and former brokers of Citigroup's Smith Barney brokerage unit in 2006 and made BlackBerry use part of his case for overtime compensation.
Victoria A. Lipnic, assistant secretary of labor for employment standards in the U.S. Department of Labor, said the department's Wage and Hour Division - which enforces the Fair Labor Standards Act - has not yet litigated against employers on the basis of overtime accrued by smartphones or other technology.
"There's a lot of buzz about it," she said, "but to the best of our knowledge, there hasn't been a lot of litigation on it. And I would add, yet."
Mr. Thierman argues regularly in court that some salaried jobs, exempt from overtime compensation, should actually be considered nonexempt, according to FLSA standards.
"It's not so much the problem of accounting for the time as realizing that you owe it to them," he said. "I think that any employer who doesn't pay overtime has got to create a paper record to justify it, not just use it as default."
The FLSA standards established the rule of time-and-a-half payment for overtime to discourage employers from overworking employees and to hire additional help if a business regularly required more work. Rules of overtime eligibility originally applied to about 80 percent of the work force, he said, leaving out executives and specialized professionals and, at one time, technology experts.
But as technology has made its way into mass use, Mr. Thierman said, exemption exceptions have become outdated and kept thousands of workers without rightful overtime pay.
Ms. McCutchens said the best way for employers to avoid getting sued for unremitted overtime pay is to resist supplying employees with BlackBerrys unless compelled by necessity, or to establish clear policies regulating the use of BlackBerrys.
"Why bother giving a BlackBerry to someone who doesn't really need it?" Ms. McCutchens said. "You'll just avoid a whole potential issue."
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