Lawsuits Question After-Hours Demands of Email and Cellphones
By MICHAEL SANSERINO
Wall Street Journal
Two recent lawsuits raise a question that many employees and employers have deliberated: Should hourly workers be paid for time spent responding to work calls or emails while off the clock?
The federal suits highlight the legal issues sparked by the proliferation of personal technology as well as the blurring of work and free time.
Last month, three current and former employees sued T-Mobile USA Inc., claiming they were required to use company-issued smart phones to respond to work messages after hours without pay.
In a March suit, a former CB Richard Ellis Group Inc. maintenance worker seeks pay for time spent after hours receiving and responding to messages on a work-issued cellphone.
"This is about 'What is work?'" said Dan McCoy, an employment lawyer and partner at Fenwick & West LLP who isn't involved in either case.
The two cases come amid other disputes over when employees should be paid. A California appeals court recently reinstated a suit by employees of medical-technology provider Lincare Inc. seeking compensation for time spent answering customer questions by phone while on call. Lincare didn't respond to calls for comment.
Greg Rasin, a partner at Proskauer Rose LLP, a New York business law firm, said the recession may spawn wage-and-hour disputes as employers try to do the same amount of work with fewer people.
The federal Fair Labor Standards Act says employees must be paid for work performed off the clock, even if the work was voluntary. When the law was passed in 1938, "work" was easy to define for hourly employees, said Mr. McCoy. As the workplace changed, so did the rules for when workers should be paid.
Subsequent court decisions have interpreted the law to require some hourly employees to be paid for putting on and taking off work uniforms, like police gear, and for time spent while booting up computers, said Audrey Mross, a partner and head of the labor and employment division at Munck Carter LLP in Dallas.
More recently, workers and their advocates have sought to apply the law to cover time driving to and from assignments off company property.
With smart phones, which typically provide Internet access and email as well as voice calling, "the boundaries become much more permeable" and work is difficult to monitor, said Christina Banks, a senior lecturer at the University of California Berkeley and president of Lamorinda Consulting LLC.
The use of pagers once raised similar issues. The Labor Department has said that workers generally don't have to be paid for carrying pagers, unless they get buzzed so often they can't use on-call time for "personal pursuits." Ms. Mross said there have been few significant court rulings on the issue.
Analysts say such disputes are growing as cheaper technology puts these devices in the hands of more workers.
"It used to be only the partner in the law firm or the executives at the companies that had access," said Brent Pelton, a partner at Pelton & Associates PC, the firm representing the T-Mobile workers.
The current and former T-Mobile employees say they were required to use company-issued smart phones to respond to work-related messages, including customer complaints, after hours without pay. When the workers reported the hours to management of the cellphone company, the lawsuit says, the employees were told nothing could be done and they should expect to work extra hours as part of T-Mobile's "standard business practices."
In a statement, the company said it complies with wage and hour laws, but doesn't comment on pending litigation. The case was filed in U.S. District Court for the Eastern District of New York.
In the CB Richard Ellis case, filed in U.S. District Court for the Eastern District of Wisconsin, John Rulli, a former maintenance worker for the commercial real-estate services company in Muskego, Wis., said he wasn't paid for after-hours time spent receiving and responding to messages on his cellphone.
In the suit, Mr. Rulli said he was handcuffed to his phone because the company required him to quickly respond to messages at any hour.
CB Richard Ellis declined to address the specifics but said in a statement, "We believe this complaint is without merit and are contesting it vigorously." The company said it complies with employment laws.
Nola Hitchcock-Cross, a partner at Milwaukee's Cross Law Firm, which is representing Mr. Rulli, said technological advancements have created a class of workers that is perpetually on call.
Mr. McCoy said employers should adopt policies to regulate smart phone use outside the office. Managers should contact employees sparingly, and make sure they are paid for responding, he said. "There is a practical approach to this," he said.
Lower-paid Md. workers could take shorter furloughs
Details of O'Malley's budget cuts emerge
By Laura Smitherman
August 12, 2009
A plan to furlough state employees could require those in lower income brackets to take fewer unpaid days, and workers may agree to some changes in health benefits, officials said yesterday.
Details of $470 million in budget cuts that Gov. Martin O'Malley plans to announce later this month emerged Tuesday during a hearing of legislative budget committees in Annapolis. Budget Secretary T. Eloise Foster said the administration is preparing a list of cuts that will target employee compensation and local aid to present to the Board of Public Works on Aug. 26.
http://www.baltimoresun.com/news/maryland/bal-md.budget12aug12,0,2551648,print.story
Official says furlough plan resembles last 1
By Brian Witte,
The Associated Press
Examiner
2009-08-11
ANNAPOLIS, Md. -
Plans for another round of Maryland state employee furloughs are likely to put the heaviest burden on higher-paid workers, much like a similar plan ordered in the last fiscal year, an official in Gov. Martin O'Malley's administration told lawmakers Tuesday.
The plans are still being worked out, said Matthew Gallagher, O'Malley's deputy chief of staff, who declined to mention the specific number of days employees would take under the plan. But he said they will focus on making lower-paid employees take fewer furlough days than those with higher salaries.
http://www.examiner.com/printa-2163743~Official_says_furlough_plan_resembles_last_1.html
Budget Briefing: O'Malley Plans Another $470 Million in Cuts
John Wagner
Maryland Moment
Washington Post
August 12, 2009
A panel from Gov. Martin O'Malley's administration provided some of the more interesting morsels to emerge from this afternoon's legislative budget briefing, which just ended. Among them:
* O'Malley (D) is preparing to propose about $470 million in additional cuts in this year's fiscal year budget to the Board of Public Works on Aug. 26, Budget Secretary T. Eloise Foster told lawmakers. She reiterated that cuts will include additional reductions to state agencies, changes in employee compensation and cuts to local governments.
http://voices.washingtonpost.com/annapolis/2009/08/budget_briefing_omalley_plans.html?wprss=annapolis
Cuts to counties on horizon
Legislators worry O'Malley will slash local governments, teacher pensions
by Sean R. Sedam
Gazette Staff Writer
Aug 12, 2009
ANNAPOLIS — Members of the O'Malley administration Tuesday continued to raise the specter of cuts in state aid to counties and to sta te employees.
The officials also told a joint briefing of the General Assembly's budget committees that a discussion of furloughs is ongoing.
http://www.gazette.net/stories/08122009/montnew181922_32531.shtml
From the Grand Lodge
The Gates Case: After Action Report
by Jim Pasco, Executive Director
On the morning of 23 July 2009, at the direction of National President Chuck Canterbury, I contacted the White House to advise them of the FOP’s concerns regarding the President’s remarks at the previous night’s press conference which were directed at Sergeant James Crowley and the Cambridge Police Department. I also advised them that National President Canterbury would issue a formal statement later in the day.
I was subsequently contacted by a second member of the White House staff, who told me that all other police groups had committed to remain silent on the issue. I told this staff member that we were unlikely to remain silent. I suggested that he call National President Canterbury, who was in a travel status, and gave him National President Canterbury’s cell phone number. I immediately called National President Canterbury and briefed him on both my conversations with White House staff.
About ten minutes later, National President Canterbury, having by then spoken with the White House himself, coordinated with Arnie Larson, President of the Massachusetts State Lodge, and instructed the Washington, D.C. office to issue a strong statement in support of Sgt. Crowley and the Cambridge Police Department. We did so at approximately 3 pm that afternoon. By early that evening, as a result of FOP leadership on the issue, all other national police groups--except the National Association of Police Organizations (NAPO)–rethought their positions and also made statements in support of the men and women of the Cambridge Police Department.
We were inundated with media calls but only responded to print media to ensure a clear and moderate message. National President Canterbury declined all invitations to appear on talk shows and television news programs.
On the following day, we were happy to comply with a White House request to help facilitate a call from President Obama to Sgt. Crowley, the content of which has been extensively reported.
There is no doubt that the FOP’s prompt, thoughtful, and aggressive action ultimately mininmized potential adverse fallout from this matter, and brought focus to the simple fact that Sergeant James Crowley is a good police officer in a good department, and that he and his colleagues were merely doing their jobs that day–and doing them well.
