Should BlackBerry Users Demand Overtime Pay? Some Lawyers Advise Drafting Corporate Use Policies Now

They don’t call ’em CrackBerrys for nothing.

Research in Motion’s (RIM) BlackBerry smartphone, along with a wide variety of Web-enabled mobile phones like Apple’s popular iPhone, Windows Mobile and Nokia devices, can be downright addictive to some folks.

Addiction to anything, be it illicit drugs or cutting-edge gadgets, is unhealthy. In fact, Merriam-Webster defines addiction as: “Persistent compulsive use of a substance known by the user to be harmful.” I think some BlackBerry users might argue their precious devices aren’t harmful—and they’re not really substances—but others more familiar with the dreaded BlackBerry Thumb and its potential health impediments would be more likely to agree that device obsession is a problem.

But another issue is coming to light as more and more businesspeople pick up BlackBerrys: What 24/7 smartphone connectivity, which is the first step on the road to BlackBerry addiction, means to the businesses and corporations that issue such devices to their employees.

A recent fracas between ABC-TV, a handful of its writers and producers and the Writer’s Guild of America East (WGAE) may be a harbinger of things to come. To make a long drama short, ABC staffers requested that they be compensated by the company for time spent on their BlackBerrys outside of normal working hours, according to CBSNews.com. At first ABC denied the request, saying an “agreement” between the company and its employees had been in place for years that states no overtime pay would be doled out to writers with company BlackBerrys, Telegraph.co.uk reports. ABC then issued waivers to its BlackBerry users asking them to acknowledge that they may be required to use their smartphones during off hours without any additional pay.

That’s when the WGAE stepped in and instructed the writers not to sign or agree to the terms within the document, which prompted ABC to revoke the non-compliant writers and producers’ BlackBerrys, according to Broadcasting & Cable magazine.

Shortly thereafter, the disagreement was reportedly settled, with the return of the confiscated BlackBerrys and the agreement on the part of ABC to compensate its staffers who use their mobile devices “beyond routine.” So, in effect, ABC said it will pay the BlackBerry users who employ their devices most frequently for work outside of traditional hours. And you can bet the company also created its own official corporate smartphone overtime compensation policy, to help avoid such confusion in the future.

This approach of creating an official BlackBerry overtime policy, is becoming common—though I suspect few companies are actually agreeing to pay for afterhours smartphone use. In fact, a number of attorneys suggest that organizations follow ABC’s lead and draft BlackBerry-use policies before they’re brought to court by disgruntled employees or workers claiming to be suffering from related health ailments like carpal tunnel syndrome.

Jeremy Roth, an attorney with San Diego-based Littler Mendelson, told The National Law Journal that he thinks it’s only a matter of time before employees realize they can win legal claims for overtime payment related to BlackBerry-use while outside of work. And Roth says employers may have a tough time disputing claims because BlackBerry devices, and carrier service records, could be used as proof that the staffers were indeed using the devices during the times they claimed.

One important component of the issue is whether or not employees are contractually “exempt” or “non-exempt.” Federal labor laws say that nonexempt employees are eligible for overtime compensation, while exempt staffers—typically

managers, supervisors, lawyers, administrative employees and other professionals—are not entitled to overtime pay, according to The National Law Journal. So a possible route around thorny legal issues would be to deploy corporate devices only to exempt staff members. Organizations could also require staffers to get permission to use their BlackBerrys outside of the office, or like ABC, attempt to get them to sign waivers that acknowledge overtime pay is out of the question.

Personally, I use a single BlackBerry which I bought and pay for myself for work and play. And I’ll admit it, I’m addicted. (The CIO.com BlackBerry Addiction Poll confirmed this fact.) But frankly, I don’t expect to be paid for my use of the device beyond the nine-to-five, as I’m not required to do so. In other words, I don’t ever have to respond to messages after I leave the office—though I frequently do. I realize this isn’t the case for many of you, and perhaps you should be compensated, but I always have the choice of whether or not to wait until morning to respond to messages.

What’s your take on the whole deal? If you’re a corporate smartphone user, do you feel like you should be paid extra for the time you spend responding to messages, etc., during off hours? Or if you’re a manager, smartphone admin or executive, do you think your staff should be compensated for their overtime BlackBerry use? Why or why not?

AS