Saturday, July 18, 2009

Will Paralegals Be Paid for Off-The-Clock Work?

When discussing the ramifications of the 'BlackBerry Culture' in my ethics presentations, I usually ask:

If your employer provides you with a BlackBerry or other wireless device and expects you to be available 24/7...or basically on call for a response all the time...should you be paid for more hours than your normal work week?

Pursuant to the US Department of Labor's Fair Labor Standards Act (FLSA), paralegals are considered to be non-exempt employees and, therefore, are entitled to be paid for all time worked over 40 hours in a workweek. That overtime pay is to be calculated at a rate not less than one and one-half times the regular rate of pay. Further, the FLSA expressly states that all time worked 'off the clock' is included in the calculation of overtime compensation.

It is a fact that more and more paralegals are working remotely or carrying BlackBerrys or other wireless devices with the expectation that they will be available 24/7. Regardless, they are most likely not receiving overtime compensation for those hours worked 'off the clock.'

Is this a problem? A case filed on July 10, 2009 in the New York Eastern District Court by Miguel Agui, Alexander Reyes and James Gipson v T-Mobile USA will provide the answer. That answer will most certainly affect the compensation received by paralegals.

Tresa Baldas writing for National Law Journal in an article dated July 20, 2009 titled 'T-Mobile Suit Puts Legal Price on Wireless, reported the following:

Letting employers work remotely with wireless gadgets has a legal price tag tied to it. So warn employment lawyers, who say a recent proposed class action against T-Mobile USA highlights the dangers of letting employees go home with BlackBerrys and other handheld devices.

In the T-Mobile case, filed on July 10 in federal court in the Eastern District of New York, retail sales associates and supervisors allege that they were not paid for "off the clock duties," such as logging into computer systems and responding to e-mail and text messages "all hours of the day." The complaint, Agui v. T-Mobile, alleges that these employees were issued T-Mobile smart phones and were required to review and respond to numerous T-Mobile-related e-mails and text messages both day and night, whether or not they were logged into T-Mobile's computer-based timekeeping system.

The complaint also alleges that the employees were required to take and place T-Mobile-related telephone calls, participate on T-Mobile conference calls and work "off the clock" during scheduled lunch breaks.

"This case is a good reminder of why every company should make sure that its payroll practices keep up with the fast pace of technological change and capture all work-related activities, whether they occur at work, at home, or via new channels of communication like BlackBerrys or text messaging," said David Barron, a management-side lawyer in the Houston office of Epstein Becker Green Wickliff & Hall. "Putting aside the merits of the case against T-Mobile, this case illustrates the legal implications of introducing technology into the workplace, especially when used by nonexempt employees to work remotely."

Barron offers employers some tips to minimize these types of claims:

• Implement a clear "off the clock" policy requiring employees to report all work time regardless of where and when it occurs.

• Train supervisors never to request an employee to work off the clock.

• If issuing BlackBerrys or remote-access technology to nonexempt employees, consider providing an acknowledgment form noting their obligation to report all work time.

Brent Pelton of the New York employee-rights firm Pelton & Associates, who is representing the plaintiffs in the T-Mobile case, said he hopes his lawsuit sends a message to employers.

"Make sure that you have a very strong policy about compensating employees for all hours worked," Pelton said.

In the T-Mobile case, Pelton said, employees were motivated to work off the clock to get commissions. He said that T-Mobile required its hourly sales associates to take and return telephone calls, e-mails and text messages from customers and co-workers while off the clock.

T-Mobile has not yet responded to the suit. T-Mobile officials were not available for comment.

The lawsuit was brought as a nationwide, opt-in collective action consisting of all persons who are or were employed by T-Mobile USA Inc. from July 10, 2006, to date as retail sales associates and supervisors.

Paralegals will certainly be watching the outcome of the matter of Agui v T-Mobile and its effect on the bottom line: their paychecks.

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