In this day and age it is commonplace for employers to issue communication devices such as Blackberries, iPhones and Androids (collectively “PDAs”) to employees. These devices allow employees to work and respond to emails and other communications without being tethered to their desks. They are beneficial to both the employer and employee – PDAs help the employer by increasing employee productivity and help the employee by allowing greater work flexibility. Unfortunately, the issuance of these devices creates an unanticipated complication for many employers – unpaid overtime.

Using communication devices issued by employers, many employees spend their time checking and responding to e-mails, text messages, voicemails and phone calls outside of their normal working hours. For non-exempt employees, this time can be considered unpaid overtime.

In recent months, the case of Allen v. City of Chicago has received much legal attention because a Chicago police officer is suing the city for unpaid overtime based on the phone calls, e-mails and text messages sent and received while he was off duty and for which he was not compensated. Allen v. City of Chicago, 2011 WL 941383 (N.D. Ill. 2011). Allen is different from other cases of this nature that have occurred in the private sector and are generally settled quietly and without much fanfare. Although Allen is a public sector case, it is anticipated that the outcome could have major implications for public and private sector employers and the field of employment law. If this case is decided in favor of Sergeant Allen, employers may see many more suits alleging similar claims.

Though the Allen case has received the bulk of attention lately, the potential for PDA use outside of work to cause unpaid overtime is clear from other cases as well. See Zivali v. AT&T Mobility, 74 F. Supp. 2d 456 (S.D.N.Y. 2011) and West v. Verizon Communs., Inc., 2009 WL 2957963 (M.D. Fla. 2009). In both of these cases, employees who allege a violation of the Fair Labor Standards Act cite several factors for causing their unpaid overtime, including the use of PDAs outside of work. What makes Allen distinctive is that the Plaintiff’s sole argument is that use of a PDA caused unpaid overtime.

Employers can be proactive and take steps to minimize their risk of being subject to these types of claims. First, employers should be mindful to whom they issue communication devices and only issue devices to those employees who truly have need for them. Additionally, employers should keep in mind that only non-exempt employees can bring a claim for unpaid overtime. Salaried, exempt employees cannot bring these types of claims. Limiting distribution to managerial staff and other exempt employees can lessen the risk that such a claim will be brought. Also, if employers do not wish to compensate non-exempt employees for their use of PDAs when “off-the-clock,” they may consider creating policies prohibiting use of PDA devices outside of work hours. Like all policies, this policy must be enforced and reflect the actual practices of the employer. For instance, any policy limiting the use of a company-issued PDA to work hours must include a provision (that is enforced) that the PDA cannot be used for personal reasons. Otherwise, it becomes impossible to limit the work-related use of the PDA to work hours; the temptation to use the PDA for work-related reasons at other times will be too great.

Also, employers should consider which PDA functions a particular employee actually needs. If an employee only needs phone access, employers can provide phones that do not have data plans for text message and e-mail capabilities. If feasible for the employer’s business, this type of practice can also be paired with a policy that requires employees to leave their company-issued device in the office at the end of the day. If properly enforced, this minimizes the risk of uncontrolled personal use which could lead to uncompensated work-related use as discussed above.

If limiting PDA use to work hours is impossible, employers must require their employees to document time spent on a PDA after hours and submit their time regularly. Without creating a record, the employer will have no defense to the work hours alleged by an employee. (Employees must also be instructed to record any hours worked while on personally-owned PDA). Additionally, while there is a threat of abuse in allowing an employee to record his or her own hours worked after the regular working day, the employer has some protection. Employers may also discipline employees for taking excessive, unapproved overtime – though the employee must be paid for any time worked. When time charged looks doubtful, employers can verify the actual use on company-owned PDA by checking phone call and text message usage records and by viewing employee e-mail accounts for messages actually sent and/or received (provided the employer has informed its employees that there is no expectation of privacy when using company-issued PDAs).

Implementing these measures does not eliminate the risk of these complaints completely as employers must also be diligent in properly classifying their exempt and non-exempt employees. While the implications of the Allen case remain to be seen, employers can take heed of the risks highlighted within the claims alleged and be proactive in enacting policies aimed at avoiding claims of unpaid overtime.