Are Off The Clock Lawsuits Heading Into Overtime? « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles

Are Off The Clock Lawsuits Heading Into Overtime?

Are Off The Clock Lawsuits Heading Into Overtime?

We are noticing an increasing number of wage and hour lawsuits filed in the Los Angeles Superior Court, Central District (downtown Los Angeles).  Although such lawsuits often involve allegations of meal and rest break violations, several employment law firms are now predicting the focus will shift to overtime lawsuits involving claims for unpaid overtime for reviewing and sending business emails and texts after hours.

A September 2008 Pew Internet & American Life Project report surmised that 50 percent of U.S. employees with access to business email check their work e-mails on weekends away from the office and 34 percent do so while on vacation.  Click here to view the report:  http://www.pewinternet.org/Reports/2008/Networked-Workers.aspx?r=1.

This situation will most likely continue to increase as companies reduce their staff and continue to demand maximum productivity from their remaining workers.  Add to the mix the proliferation of BlackBerrys and other hand-held devices and a 24/7 work world mentality and such wage lawsuits are bound to follow.

Two ongoing high profile class action lawsuits have made the news for bringing such unpaid overtime claims for non-exempt hourly workers.  In John Rulli v. CB Richard Ellis, Inc., filed in March 2009 in federal court in the Eastern District of Washington, the plaintiff, on behalf of himself and all other similarly situated current and former hourly maintenance employees, claims he was forced to perform off the clock work without hourly or overtime pay.  Plaintiff’s complaint alleges he and the class were given personal data assistants (PDA’s) such as BlackBerrys, to access work-related emails, voicemails and work orders and were required to answer and/or respond to incoming messages and/or phone calls within fifteen minutes of receipt, regardless whether they occurred after regular work hours.  View the complaint here: http://www.texasemploymentlawupdate.com/uploads/file/Ruilli%20v_%20CBRichard%20Ellis%20Complaint%281%29.pdf

In the second overtime lawsuit, Agui v. T-Mobile, USA, filed in July 2009 in federal court in the Eastern District of New York, plaintiffs seek to recover wages on behalf of themselves and other similarly situated retail sales associates for unpaid hours worked when reviewing and responding to T-Mobile emails and text messages at random hours of the day.  Plaintiffs are T-Mobile sales representatives who receive an hourly wage plus monthly commissions.  Plaintiffs allege they were required to review and respond to T-Mobile related emails and texts at all hours of the day, frequently outside their normal forty hour work week and were not compensated for the additional 10-15 hours per week spent on such calls and text messages.  Plaintiffs also allege they were required to give their company business cards to customers, which listed their mobile phone numbers and email addresses.  Although plaintiffs allegedly received telephone calls from customers throughout the week, including while off the company time clock, their managers supposedly instructed them to resolve customer problems over the phone, even when off the clock, for which they claim they were never compensated.  View the complaint here: https://bowlesprod.wpengine.com/documents/Agui-et-al-v-T-Mobile-Complaint-10-jul-09.PDF

Both cases illustrate the need for companies to ensure their payroll practices meet the needs of today’s technology-oriented workforce.  At a minimum, employers should create and enforce written policies clearly requiring non-exempt workers to report all time spent reviewing and/or responding to emails or texts outside of regular work hours.  Employers should also instruct supervisors to refrain from ordering hourly employees to take and return business-related calls, emails and texts while off the clock.  Lastly, if the employer issues company-owned PDA’s, the recipients should sign a form acknowledging their responsibility to report all work time on and “off” the clock.

If you have any questions, please call, email or text me or any of our other employment law attorneys.   Best, Cindy Bamforth