For many employers, providing employees with constant access to e-mail has become an indispensable business tool. However, some employers do not realize the potential legal consequences when certain employees are provided Blackberries, Treos, I-Phones and other mobile data devices. For employees classified as non-exempt from the overtime provisions of the Fair Labor Standards Act, time spent away from work checking or replying to e-mail can be classified as working time. If the employee’s total weekly working time exceeds 40 hours, he or she is entitled to overtime pay under the FLSA. Employers may have a very difficult time tracking working time spent on these devices away from the office, or rebutting employee claims of large, uncompensated amounts of overtime resulting from working on these devices.

How can employers manage overtime risks in this situation? Apart from refusing to provide mobile devices to hourly employees, companies can pursue a few strategies to reduce the possibility of claims. First, a company policy could prohibit or limit employee use of the devices outside of approved working time. This would only act as a shield to overtime claims if the employer consistently enforces the policy. Second, the employer could require that the non-exempt employee keep accurate records of all time spent working with one of these devices. The employer can then use these records to monitor and manage overtime hours, or use the records to rebut an employee’s assertion of large amounts of additional unpaid overtime worked.

As mobile communication devices become almost universal, employers must balance the benefits of 24-hour employee access to work information, with the corresponding wage liabilities created by employees potentially always being “on the clock.”