bbolSo, you remember February 2009, right?

We were all aflutter over Liam Neeson in Taken (ok, I still haven’t seen it).  And we were listening to “My Life Would Suck Without You” by Kelly Clarkson (still a good song.)

And I had a Blackberry Bold and loved it. (I know; even lawyers can plead temporary insanity).

How do I remember this? Because I wrote about my mobile device back then.  (We called these devices “PDA”s.) 

Now you might be asking the next question: Why? Because I suggested that employers needed to get on top of the issue of employees using these devices outside the office.

At that time I said: “questions have been raised about the use of these devices by non-exempt employees — in other words, those employees who are eligible to receive overtime. If these employees are reviewing their messages outside of work, do they need to be compensated for that time?”

But enough people still hadn’t gotten the message, so I repeated that cautionary tale in 2012.  I even talked about best practices.

Now, over six years later, Blackberrys have almost disappeared (and the new iPhones are getting announced next month, right Siri?) but the issue of mobile device usage by non-exempt employees has not.

In fact, earlier this month, the U.S. Department of Labor indicated that it will seek public comment as to the after-hours usage of mobile devices by employees and its impact on wage & hour enforcement laws.

The Pennsylvania Labor & Employment Law Blog has a good recap here, but the essence of what the post says is similar to what I also said six years ago:

Determine whether and to what extent the operational benefits offered by giving off-hours access to work e-mail and telephone systems by non-exempt employees exceed the potential costs of class-based claims for unpaid overtime….[And h]ave in place a policy for non-exempt employees that addresses working remotely and outside of normal work hours.

I expect you will continue to hear a lot more about this as this becomes a priority for the USDOL.

Just don’t say I didn’t warn you.  It’s been an issue many years in the making.