The tension between use of smartphones during off hours and overtime is a clear example of technology outpacing the law. However, lawsuits regarding overtime and smartphone technology are beginning to appear in the court system. In August 2010, a group of AT&T Services, Inc., employees sued their employer claiming they should be paid for being on call to handle IT service calls. In 2008, AT&T Mobility was sued in federal court for back pay and unpaid overtime which resulted from responding to e-mails during non-business hours.

     The Fair Labor Standards Act (“FLSA”), with some qualifications, begins with the assumption every employee who works more than 40 hours in a workweek is entitled to overtime. Most employees are entitled to overtime if they work more than 40 hours per week. Employees, under the FLSA, are categorized as “exempt” or “non-exempt.” If an employee is exempt, that typically means the employee is not entitled to overtime.

     If a non-exempt employee is checking her work e-mail on a smartphone outside of normal business hours, the employee is probably entitled to overtime because the employee is likely performing compensable work for which they are required to be paid.

     Difficulties arise, however, because neither employees nor employers tend to track how much time an employee spends reviewing and/or responding to e-mails on a smartphone during non-business hours. A 2007 article in The New York Times reported that a non-exempt employee submitted a time sheet documenting 800 hours in 17 weeks, or $32,000 in overtime, based primarily on reviewing and responding to e-mail during non-business hours.

     Constant communication with the office can place the employee in a precarious position. While an employer is required to pay overtime, there is no limit on the amount of overtime hours an employer may require. Hence, an employer could e-mail his employees around the clock, and if the employee fails to respond, the employer is free to terminate the employee.

     The answer is that typically a non-exempt employee must be compensated. However, as is often the case with overtime questions, you should consult an attorney about your specific employees.