New York Employment Lawyer Blog

I was recently reprimanded by my wife for checking my work email at a wedding. She said it was rude and she was right.

As if on cue, my wife, who is also a lawyer and works for a low-tech government office which only allowed for external email four years ago, was issued a blackberry last week by her supervisor. Now she is one of many lawyers carrying two smart phones. My poor manners aside, there are virtually no social limitations on smart phone usage, including usage of smart phones for professional purposes.

Should you be paid for the time spent on your blackberry? Of course. Check out this NPR article on blackberry usage and overtime. Under the FLSA, time spent communicating with your employer or otherwise working on your crackberry is compensable. If you are a non-exempt employee who spends a tremedous amount of time on your blackberry and feels...well...instinctively undercompensated, you're probably right. Don't rest on your hunch, call for a free screening.

I have screened hundreds of overtime cases. In my practice, the following three categories of nonexempt employees under the FLSA are the most blackberry dependent, misclassified and undercompesated (i.e. abused):

1. IT employees, including help desk employees and systems engineers;
2. Pharmaceutical sales representatives;
3. Staffing recruiters (incredibly long hours and hard work - hats off to these employees - case law says you should be getting OT if you aren't involved in project management and post-recruitment supervision).

Smart phones are embedded in the culture. My 3 year old is adept with my iphone; she knows how to find the games she likes and will undoubtedly be asking for one before she is 10. Frightening. There's no turning back. However, you should not let your employer abuse the popularity of these phones by discounting the time you spend on them. Use your blackberry to call for a free screening.

The discretionary bonus is often the largest part of a Wall Street executive's compensation. Typically, the base salary for senior financial executives is small compared to their discretionary compensation. This can leave financial executives in a vulnerable position if they resign or get terminated before the distribution of bonuses. Departing executives frequently are denied their bonuses.

Wall Street firms usually deny the bonus on the ground that they have the discretion to do so. But this is not always true. If the bonus is an integral part of the executive's compensation, courts and arbitration panels will award the unpaid bonus to the executive. Companies do not have unfettered discretion to deny bonuses in certain situations. In fact, even if the parties have agreed that bonus payments are purely discretionary, courts and arbitrators will not allow blanket bonus denials if the decision appears arbitrary or irrational. Instead, courts look to the history of bonus payments and will apply the criteria used in the past to determine an appropriate bonus.