Reach Out and Touch Someone … Except After Hours
Hourly workers are rising up against employers who give them smart phones and then expect them to respond to company-related email and voicemail even when their regular shifts are over – without paying them overtime, according to an article in today’s Wall Street Journal.
The federal lawsuits, filed by employees of T-Mobile USA and CB Richard Ellis Group, raise the murky issue of what is considered “overtime” and, more importantly, what is considered “work” – all in the context of an economic recession in which employers are trying to cut costs by squeezing more productivity out of fewer employees.
The employees filing the suit “are probably right,” says Wharton management professor Peter Cappelli. "The Fair Labor Standards Act, which protects hourly employees, says that employers have to pay people for the hours they work. If it’s a company-issued phone and company business, that [constitutes] work.”
The trend by employers “has been to push work into a 24/7 environment,” adds Cappelli. “Some of this has been facilitated by employees who see things as projects and are willing to work flexibly. The difference would be between an employer who said, ‘Here is the work requirement and, by the way, we now want you to be on call the whole time,’ vs. the employer who said, ‘I don’t care when you get your work done. You have flexibility, but I need to be able to reach you when I need to and here is the phone.’ Those are quite different circumstances, although legally they are not.“
Sometimes, Cappelli says, “employers aren’t even aware of what the law is, and they are surprised to discover there are laws on this. [Lawsuits] have been coming up quite a bit now in all kinds of [circumstances] because employers are extending the way they work with white collar workers to their blue collar workers. Blue collar workers are, in fact, better protected than white collar workers, who basically have no protection.”
The Journal article cites one lawyer as noting that “technological advancements have created a class of workers that is perpetually on call.” Another lawyer suggests that employers “should contact employees sparingly [outside the office] and make sure they are paid for responding.” The language of the federal Fair Labor Standards Act of 1938 specifically states that employees should “be paid for work performed off the clock, even if the work was voluntary,” according to the article.
Clearly times have changed since 1938. Indeed, one question the article doesn’t address: As hourly workers in many countries, including the U.S., head out to the beaches, mountains and other destinations – armed with their BlackBerries, laptops and other tools of the trade – should they be paid overtime for any work the company sends their way? Stay tuned.
