Non-exempt employees are those eligible to receive overtime pay; managers and supervisors are exempt. If non-exempt employees — those eligible to receive overtime pay — are using their Blackberrys after hours to write long e-mails, or make or receive work-related phone calls but are not being compensated, writes staff reporter Tresa Baldas, that could be a problem. Further, the BlackBerry creates a digital record that backs up employee claims.
“Before there was at least an argument that no, the employee is not being truthful when they say, ‘I did all this work after hours.’ But now, that swearing contest is taken out of the mix,” Jeremy Roth of Littler Mendelson Roth is quoted as saying in the article. “If the employee says, ‘Lets take a look at my BlackBerry,’ you now have a record. If it’s a text message, or a Wi-Fi at Starbucks — if they’re nonexempt and they’re off the clock, that’s a problem for employers.”
Legal experts quoted in the article advise that you have policies in place governing use of the devices during non-work time, requiring employees to get permission to use them, and setting forth terms of compensation in order to avoid lawsuits. Some advise providing BlackBerrys only to exempt employees.
