We’ve been hearing lately that in the United States employers are being held liable to employees for overtime compensation for using PDAs/BlackBerrys after hours for work and for checking work-related emails. We’ve been made aware of four such class action suits by employees that allege, among other claims, that the company provides them with BlackBerrys or other smart devices, and that they are required to review and respond to work-related emails and text messages at all hours of the day, amounting to 10 to 15 overtime hours per week.
It seems nowadays that almost every employee or executive uses some type of portable modern technology such as cellphones, personal data assistants, such as BlackBerrys, as well as laptops and remote workstation connections. Why? They have a number of uses, such as access to: a calculator, clock, calendar, video recorder, address book, word processor, radio, and even Global Positioning System (GPS) service. They can also be used to access the Internet, create and write spreadsheets, and play computer games, or as portable media players and of course mobile phones. But most important of all, PDAs can be used to send and receive emails.
They have allowed employers to stay connected with employees, and employees to stay connected to customers and the workplace 24/7, resulting in what can be called a “perpetual workplace”.
Even when employees leave the workplace after hours, or are outside the office during lunch, on weekends or on vacation, they increasingly are checking or typing away on their PDAs performing work-related activities.
In addition, employees are becoming more and more concerned about job security at a time when economic problems are increasing competition in the job market. Furthermore, businesses of all sizes are working to maintain revenues and keep afloat during the economic downturn. These factors are leading employees at all levels to work harder and longer hours to stand out from the crowd, resulting in many employees being unable to separate the time they’re working from the time they aren’t.
Working time is the period of time that an individual spends at paid occupational labour. In general, employment/labour standards legislation prescribes a legal maximum number of hours per day or week that employees are permitted to work. The standard is: employees must be paid for all hours worked. For most employees, overtime rates apply after they have worked the defined threshold in a workweek.
Employees are considered not to be working when they are permitted to take time off work for their own private affairs or pursuits. If an employer cannot identify accurately when an employee was or was not working, it might not be able to defend itself against employee complaints regarding wages owing. Without records to support the fact that the employer granted employees time off and how long they were off, courts, arbitrators or employment standards officers will assume that an employee was working and is entitled to pay for the time. Further, if the work exceeds overtime thresholds, then the employer will be obliged to pay overtime pay.
Time worked outside the office is very difficult for an employer to track, and could become very costly. Some argue that the time employees spend on their PDAs should not be compensable because they are not under the employer’s control or authorized.
Legal experts are warning employers that this problem will not go away and that they should be proactive by creating specific policies and procedures that address employees’ use of PDAs during and outside regular work hours. The policy should state, at a minimum, that employees must report any work time spent using PDAs. Businesses should also consider placing limits on when employees can use the devices beyond the standard work hours—possibly up to the point of requiring permission before using their PDAs after work hours.
So far there have not been any reported overtime claims for remote access for work conducted outside regular work hours in Canada. However, it is an interesting HR issue with potential liabilities for Canadian employers in the near future.
What do you think?
Human Resources and Compliance Managing Editor
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