Monday, August 10, 2009

Fair Labor Act Lawsuits on the Rise

As would be expected under a solidly Democratic Administration and Congress, there has been a recent proliferation of civil lawsuits that seek to distinguish the precise meaning of the Federal Labor Standards Act. The specific provision of that Act which seems to be under the most fire currently is the stipulation that an employee must be compensated for work he performs off the clock, regardless of whether this labor is considered voluntary or not. This particular Act was passed in 1938, at a time when most jobs required that the employee actually be present somewhere; clearly an understanding of "work" that has been undermined by technological advances. The WSJ has reported on a couple of lawsuits that deal specifically with the use of smart phones such as Blackberry's and the derivatives thereof, and whether hourly employees deserve compensation for time spent wielding these Blackberry's off the clock. Because most of my earnings are derived from a salary, after-hours compulsory work related communication via Blackberry are a standard - and expected. It seems though that there is a compelling legal case to be made that hourly workers should be compensated for this sort of activity because, after all, it's still work. I am guilty on occasion of shunning the office completely, and conducting my "work" via Blackberry from home. These occasional acts of defiance are tolerated and generally not noticed because I am achieving the same level of productivity as if I were in the office. There are however, certain considerations that these newly litigious employees should be aware of.

A quick glance through Lexis shows that the same law firm - probably the "advocates" referred to in the Journal article - has brought similar suits to federal court in the Western District of Wisconsin. In Alan Musch v Domtar Industries Inc., the same issue was being challenged, although the facts were substantially weaker for the plaintiff. Basically, Musch wanted to get paid for time spent rinsing off toxic chemicals in the company shower. The Court granted Domtar a summary judgment though, because Musch's attorneys made a bit of a stretch by assuming throughout their arguments that Musch would be doused with toxins on a regular everyday basis.

Enter the new smart-phone argument, and the same attorneys come armed with a 21st century set of facts that are sure to mount a more formidable case for the plaintiffs. Regardless of the case's viability, these employees need to consider whether this is the battle to be picking. It sounds like they already have a good deal going; being hourly employees with a company provided smart-phone in one of the most inhospitable job markets on record. This lawsuit may yield fees for the attorneys, but it could ultimately damage the workers employability. Likely though, they have been promised a pot of gold at the end of the rainbow, and are not considering such things as the effect of a litigious reputation. Sphere: Related Content

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