Controlling Smart-Phone Abuse: The Fair Labor Standards Act's Definition of "Work" in Nonexempt Employee Claims for Overtime

Analysts expect more than 35 million smart phones will be sold in the United States in 2008, which represents an increase of seventy-seven percent from 2007. Smart phones, such as the BlackBerry and iPhone, allow people to use the Internet, send and receive e-mail, and store data. These features allow people to be in constant and instant communication with their family, friends, and, particularly, the office. The increasing prevalence of smart phones has repercussions for both employees and their employers as the separation between work and home becomes ever smaller. Employees are now able to accomplish substantive work in the office, in the home, on the way to and from work, and just about any place else using the smart phone’s capabilities. The smart-phone culture can infect the workplace, and both senior and junior employees may feel compelled to do work once they have left the office. As a result, employers are potentially liable for overtime compensation when nonexempt employees use their smart phones to perform work-related tasks when they are off the clock. The “non-exempt” label refers to employees who do not fall under the maximum hour exemptions of the Fair Labor Standards Act (FLSA).