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Lawsuits over "Crackberry" Addiction?

When I read stories like this, I don't know whether to laugh or to cry.

A professor at Rutgers's School of Business, Gayle Porter, predicts in a soon-to-be-published study that disgruntled workers who feel they are unable to turn off their personal digital assistants and mobile telephones will begin suing their employers for their technology addictions — and that such lawsuits could potentially cost corporate America hundreds of millions of dollars.

"If companies develop a culture in which people are expected to be available 24 hours a day, then they should be prepared for the physical and psychological consequences," Mrs. Porter said. "Addicts exhibit extreme behavior and have no control over themselves. So a corporation handing someone a BlackBerry on his first day of work could be seen as enabling, even accelerating, a serious addiction to technology."

(LvHB)

Related Posts (on one page):

  1. "Crackberry" Suits Unlikely:
  2. Lawsuits over "Crackberry" Addiction?
OrinKerr:
Who do we sue for blogging addiction?
9.7.2006 1:33pm
Joel B. (mail):
Hmm, I suppose Volokh's the one who got you hooked Orin, maybe there's some deep pockets to go after!

I will say, the one frusterating thing about blackberries and the "technology" is that it's not so much the technology, but it's the inability to "leave the office" Which if anything, getting paid for 10-12 hours of work, but being expected to be available 24/7 is not exactly the best situation to be in.
9.7.2006 1:36pm
mark nelson (mail) (www):
Unless you're a doctor or in some other profession where you are "on call", why would anyone work for a company that expected you to be available 24/7?

On the other hand, if an employer fires someone for turning off their gear after regular work hours, that seems like much better grounds for a lawsuit.
9.7.2006 1:43pm
Al Maviva (mail) (www):
Unless you're a doctor or in some other profession where you are "on call", why would anyone work for a company that expected you to be available 24/7?

You mean like practicing law in a big firm, working for the government or serving in the military? I haven't a clue what would motivate anybody to do it. Perhaps people do it because it's otherwise quite hard to get abused like that without paying another kind of professional service provider to do it to you.
9.7.2006 1:47pm
cirby (mail):
One thing I've noticed about those "addicts" is that, while outwardly complaining about all of the business they have to attend to 24/7, they're quietly catching the sports scores or other non-business activities.

...so when the first of those "addiction" lawsuits comes up, with someone complaining about the slave-drivers who work them inncessantly, the employer will just release the traffic analysis of that user's "work."
9.7.2006 1:50pm
Darren (mail) (www):
Well, when they spoke about frivolous lawsuits, I didn't expect them to be this frivolous. Surely this is just as silly as suing your employer because they provided internet access at work and now you're hooked on the 'net?

As Mark Nelson has said, there might be case to go on if the employer prevents workers from turning their devices off after work hours, but otherwise this just seems silly to me.

But this culture of lawsuits is getting a bit out of hand now. am I the only one to have the impression that this is driven more by law firms seeking new areas of revenue rather than any legitimate public interest?
9.7.2006 1:51pm
Crunchy Frog:
Stop me before I text again!
9.7.2006 1:51pm
Stryker:
Often these devices are given so that the company can contact people who are traveling on company business. In many cases, it would be really hard to prove that the company was requiring the phone to be on all the time.

As far as an addiction goes, I'd think that is much harder to prove both existance and harm (I'm "addicted to electricity...").
9.7.2006 1:53pm
The River Temoc (mail):
Without commenting on the particularly legal theory advanced (i.e., that Blackberries are addictive in the sense that nicotine is), which does not sound like the strongest argument, I disagree profoundly that this issue is frivolous, or that employers could never legimately be held liable for creating an "always-on" corporate culture.

In the field of sexual harrassment law, for instance, the courts generally accept that a "hostile work environment," and not only specific instances of lewdness or what not, is actionable. Surely the creation of an always-on culture has the potential to create a stressful, and arguably hostile, work environment? True, we're extrapolating from sexual harrassment law into a broader employment law discussion, but the theory does not strike me as manifestly unreasonable.

The always-on culture might also harm employee health in ways other than addiction, such as by creating undue stress, lack of adequate sleep, and so forth. (Yes, I've definitely experienced this phenomenon myself, although mercifully not in my current job.) Again, inflicting such harm might be actionable in tort.

I agree that used properly, devices such as Blackberries enhance productivity -- but the key there is "used properly." There are many well-managed companies out that that know how to deploy technology effectively, but there are also those that do not. The threat of litigation gives them an incentive to adopt best practices in integrating always-on technology into their operations.
9.7.2006 2:14pm
Eh Nonymous (mail) (www):
Comet backwards:

You know that "hostile work environment" is a term of art, right? That it doesn't apply to every work environment that is hostile, but only the ones that involve sexual harassment?

Without commenting on the merits of the suit, I'm annoyed when people parse legal labels too literally.

Employers can be held liable for constructively discharging, for discriminating against a protected class or person, or for other intentional torts. Creating a "miserable" work environment, on the other hand, has nothing to do with sex harassment or sex discrimination.
9.7.2006 2:21pm
Darren (mail) (www):
Temoc, just to clarify, the aspect I was calling frivolous was not the idea of forcing employees to be "always-on" 24/7 (indeed I said there may be a case if employees are prevented from turning their devices off after working hours), but rather the idea that employees have become somehow addicted to these electronic devices.

People become inseparable from their electronic devices not because of corporate pressure, but because most people actually crave the concept of being connected 24/7 even while they profess to hate it. There's a certain satisfaction in the perceived security of that sort of permanent connection to one's wider world, and a concurrent reluctance to take the physical act of disconnecting oneself from that. Indeed, many reasons are advanced to oneself for the decision to remain connected: "What if there's an emergency? What if somebody needs to get hold of me really urgently, and they can't because my BlackBerry/mobile phone is off?"

But ultimately this is not a product of corporate pressure, but rather the consequence of the availability of technology which allows this sort of permanent connectivity. Technology is just enabling the traditional human propensity to worry about things we cannot control, and the desire to have the illusion of control as a result. It's stupid to blame companies for this.
9.7.2006 2:30pm
Former Republican (mail):
In any event, states' workers' compensation systems generally provide the exclusive remedy for claims of personal injury due to an employer's alleged negligence. I don't think that anyone could legitimately claim that the employers intended for their employees to be harmed by the demand that they be "on-call" at all hours.
9.7.2006 2:31pm
frankcross (mail):
When complaining about frivolous lawsuits, it is generally better to rely upon lawsuits that have actually been filed, not those predicted by a professor but that have not even been filed.
9.7.2006 2:41pm
Steve:
I remember predictions of all the frivolous and non-frivolous lawsuits that would be filed over Y2K. This prediction will likely end up in the same dustbin.
9.7.2006 3:04pm
Houston Lawyer:
At my former firm, they would buy you a crackberry and then expect you to pay the $45 per month service fee. This was an optional policy. Most of the associates declined to pay to be more available to clients.

I understand answering the phone right away when someone calls, but who needs to answer every email within 60 seconds?
9.7.2006 3:19pm
LAS (mail) (www):
You know that "hostile work environment" is a term of art, right? That it doesn't apply to every work environment that is hostile, but only the ones that involve sexual harassment?

Hostile Work Environment is based on race, religion, sex, national origin, age, disability, veteran status, or in some parts of the country, sexual orientation, political affiliation, citizenship, marital status, or personal appearance. It occurs when a co-worker, supervisor, or anyone else creates an abusive work environment that interferes with an employee's work performance.
9.7.2006 3:40pm
lucia (mail) (www):
Unless you're a doctor or in some other profession where you are "on call", why would anyone work for a company that expected you to be available 24/7?


Because it's gotten to be a fairly common practice in many fields? Because the company developed the culture over time, it's not always easy to find other decent jobs and you don't want to lose various acrued benefits?

I don't have this type of job, but I know engineers and technicians who are on call 24/7 for a variety of reasons. Usually if you hear the job description, the need to carry the pager isn't obviously insane-- but prior to pagers, blackberries and other devices, companies dealt with "emergencies" differently. (Scare quotes used intentionally. )

About 15 years ago, a bunch of us once noticed another engineer carrying the pager at a New Year's Eve party and scoffed at him. Someone said, "What? Are you worried someone will violate Darcy's law?" The guy carrying the pager told us the pager belonged to his girlfriend who worked in PR. Her supervisors discouraged her from even leaving the thing in her purse since that might delay response to a serious PR emergency!

I would not be surprise if some supervisors now expect people in PR to carry Blackberries so they can email each other about possible responses to various PR emergencies.
9.7.2006 3:47pm
Thorley Winston (mail) (www):
I remember predictions of all the frivolous and non-frivolous lawsuits that would be filed over Y2K. This prediction will likely end up in the same dustbin.


I'm not sure that the two situations are comparable. IIRC the reason why we weren't hit with a rash of Y2K lawsuits was because most companies "fixed" the Y2K bug (thereby preventing most of the feared damages from occurring) and because Congress and the President passed a law limiting their liability.
9.7.2006 3:52pm
elChato (mail):
I think this is just some professor looking for headlines and attention. Nothing like this is ever likely to be filed, the chances of lots of these suits getting filed is nil, and the chances of such suits going somewhere is pretty much absolute zero.

/of course, watch me be proven wrong- again.
9.7.2006 4:14pm
ksd:
I don't understand a lot of people, I guess. What's the big deal? I'm a salaried professional. I get paid to do a job, not to work specific hours. If that means I have to work sometime other than 9-5 M-F, so be it. If I wasn't willing, I could go back to a job where I punched the clock, for a pretty substantial pay cut. I'm willing to bet that the population of "crackberry addicts" is almost exclusively salaried, white collar pros. It's their choice.

They have another choice, too. They can use the "off" button. My blackberry and cell phone both have them. I use them a lot.

At my last job (in-house counsel to a public company), the CEO who hired me made clear that 24/7 availability was a job requirement. He might be in a meeting in Beijing or Prague, any day of the week, and have an issue come up. As a result, I kept the cell phone with me 24/7. Did I have to interrupt sleep or family time on occasion to take calls? Yup. And I was well paid for it.
9.7.2006 4:24pm
Barbara Skolaut (mail):
Mrs. Porter (and others of her ilk) should grow the hell up - as should the "disgrutled" workers who feel they can't turn stuff off. When did their feelings become so important? What happened to actions and facts?

Maybe if they bothered to acquaint themselves with the "off" button, they'd be more gruntled.

Or they can get jobs that don't come with PDA's. And they can probably get fries with those jobs, too.

I used to be a building services supervisor (in another life - before cell phones), and carried my beeper all the time when my boss was out of town (otherwise, he carried his). Didn't bother me a bit. I was also a volunteer firefighter, for which I carried a different beeper, and got rousted out of bed - or movies, etc. - many times. In both cases, I could have chosen to do something else. But the job paid very well, and I loved firefighting more than sleeping. I made a choice; these people do too.

BTW, speaking of disgruntled, I'm very gruntled with my present job. Maybe they should look around for jobs that gruntle them, too. :-D
9.7.2006 4:45pm
ray_g:
I found the article a little confusing, but if I read it correctly the concern is not about companies requiring employees to be on call 24/7, but that by providing the means to do so they are somehow "enabling" workaholics, so the hypothetical lawsuits would be about feeding their addiction. One more case of abdication of personal responsibility. As others have noted, these devices have off switches, and I have found that if I set my cell phone on a table and firmly issue the command "Stay!" that it does not follow me around. But I really don't understand this sentence from the article: "Companies that say Black-Berry use is strictly a matter of personal choice could be setting themselves up for legal trouble down the line." The phrase "strictly a matter of personal choice" pretty clearly indicates that use is not required by the company. Or is the problem that they did not warn the employee about potential addiction, or make it mandatory to turn them off after hours. I know, let's have Surgeon General warning stickers similar to the ones on tobacco put on these devices!
9.7.2006 4:55pm
DCP:

Somebody needs to punch this woman in the face.

And I mean that literally. She needs to be punched. In the face.
9.7.2006 4:57pm
Huh:
I wonder if the Fair Labor Standards Act (FLSA) has something to say about these "always on" claims. A corporation that mis-classifies someone as exempt and then hands them a blackberry, instructing them to be available to clients at all times...well, the potential liability for back-pay and overtime could be tremendous.
9.7.2006 5:50pm
Paul Johnson (mail):
Huh is right, but only with respect to non-exempt employees. Do such "always-on" companies expect their hourly personnel to carry blackberries? If so, they have a problem; my instinct without any research is that it's mostly exempt employees (managers, professionals, etc.) that have blackberries - and keep them turned on.
9.7.2006 6:19pm
Redman:
Unless you're a doctor or in some other profession where you are "on call", why would anyone work for a company that expected you to be available 24/7?

You mean like practicing law in a big firm, working for the government or serving in the military? I haven't a clue what would motivate anybody to do it. Perhaps people do it because it's otherwise quite hard to get abused like that without paying another kind of professional service provider to do it to you.


Here's another suggestion. Its called capitalism. Its called having a good paying but stressful job so your 3 college kids can get their educations. Its called working for a Fortune 100 company where everyone has a boss and every boss has a boss.
9.7.2006 6:39pm
Huh:
Paul, you're correct. But the issue of who's exempt and who's not is a tricky one. Many companies thought they could avoid paying overtime simply by calling people managers, but a spate of class actions are calling these and similar strategies into question. I agree though, most people with blackberries are correctly classified as exempt. And I imagine firms are already aware of the issue, but it's an expensive mistake to make.
9.7.2006 6:48pm
mark nelson (mail) (www):
There are obviously lots of jobs where being available 24/7 is a necessity. Many people have listed them. They include, but are certainly not limited to, doctors, firefighters, utilities workers, and many management positions. Long before Blackberries there were cell phones and beepers. Before that you had to keep in touch with the office to let them know how to reach you.

I don't think that is what is being referred to here.

It seems that the problems happen when what used to be normal, 9-to-5 jobs become 24/7 due to the present ease of reaching people at all hours. Nowadays, everyone expects that everyone else can always be reached at all times. It is, unfortunately, the culture we have become.

And sure, it's one thing to be hired or promoted into a position where you are required to be available. That is a choice you make. It's quite another thing, especially if you are an hourly worker, to be expected to be reachable at all times, for any trivial reason; which is exactly the problem we are facing more and more.

Luckily for me, i work outdoors--often out of cell phone range. I gotta tell you, it's quite liberating to be 'unreachable'.
9.7.2006 9:37pm
Bubba Clinton (mail):
I admit it. I am addicted to my BlackBerry!
9.7.2006 11:36pm
Just:
"Its called capitalism. Its called having a good paying but stressful job so your 3 college kids can get their educations. Its called working for a Fortune 100 company where everyone has a boss and every boss has a boss"

Some call it "rat race". Try walking away for a bit.
Takes some good money sense/handling, and courage, perhaps a bit of sacrifice (probably you're already locked into the mortgage and kids thing) but adds years to your life, if done right.
9.8.2006 9:20am
LAS (mail) (www):
Hmmm? If you're not paid by the hour, you're a salaried employee. What happened to the axiom: salaried folks work until the job is done! That 24/7 crackberry thing: maybe the work ain't done.

Looks like technology produces more cultural lag!
9.8.2006 11:11am
JohnEMack (mail):
I doubt if lawsuits over this sort of thing will get anywhere. But workers' compensation claims are another matter. If an employee can show that employer-mandated "homework" causes disease or injury, that employee might well prevail in the comparatively worker-friendly confines of compensation court. There is a fair amount of precedent for this sort of thing -- firefighters breaking legs responding to a fire call, etc. The downside is, if workers' compensation provides a remedy, the "exclusive remedy" provisions of most workers' compensation statutes will bar a direct suit against the employer.
9.8.2006 11:21am
JosephSlater (mail):
Let's try to distinguish some issues.

First, re idea that anybody could sue on some sort of "enabling an addiction" theory, as several folks have said, no actual suit of any such kind has been filed, and no such suit would have any chance of success. Good catch by Former Republican who noted that workplace injuries caused by the employer's negligence are generally covered by workers' comp. "Mental stress" injuries in workers' comp cases typically are won only if the stress was truly unusual (seeing a co-worker crushed to death, e.g.),. And even if this wasn't covered by workers' comp, I can't see how this could win as a tort suit. And "hostile environment" does extend beyond sexual harassment, but only to hostility based on "protected group" status: so while it's illegal to treat people especially badly because of their race, sex, relition, or national origin, it's not illegal to create a wide variety of other unpleasant ("hostile," in lay terms) workplace conditions.

Second, there's the "forcing/expecting people to be on-call 24/7" as a LEGAL issue. Indeed, this is covered by the FLSA. If the employees in question are covered by the FLSA, then certain types of "on-call" time and any time actually spent working has to count toward the 40 hour per week overtime trigger. So, some folks could be owed extra compensation, if the employer wasn't paying time and a half rates. But, as Huh explained, this FLSA protection only applies to "non-exempt" employees, and many-most of the professional/managerial types who are expected to be on-call all the time are probably exempt.

Finally, there's the "forcing/expecting people to be on-call 24/7" as a moral/economic/social issue. Is it good or bad, normatively, to have this sort of work relationship? We can debate what jobs justifiably impose such requirements, the extent to which people freely choose or can bargain about them, and the personal and social costs such requirements may impose, but we won't resolve that here.
9.8.2006 11:56am
LAS (mail) (www):
JosephSlater writes, "And "hostile environment" does extend beyond sexual harassment, but only to hostility based on "protected group" status..."

Protected extends beyond race, sex, national origin, etc. An employee could enjoy protected status after filing a complaint (participating in a protected activity). And with the new retaliation standard, it may very well be illegal to "create a wide variety of other unpleasant workplace conditions." At best, it's become very unclear. Justice Breyer explained, "We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances," (Burlington N. and Santa Fe Ry. Co. v. White, U.S., No. 05-259, 06/22/06).

With regard to the FLSA, employees can't have it both ways. An employer pays hour for hour with the expectation of overtime, or an employer pays a salary with the expectation that the work goes beyond a specific number of hours. Salaries averaging over 80K/year to exempt employees; think about it? While most won't admit it, companies think they're paying us to carry the blackberry and it's not an on-call issue. An employee with a blackberry on 24/7 is at work (at home or when they don't have to report to a physical location), not on-call. The 80K or the three figures, I think it's called compensation, making up for having us work beyond the 'regular work schedule.'

Finally, that's what cultural lag is all about: Creating debates because we've progressed technologically, but not culturally, i.e., moral, socio-economic, etc.
9.8.2006 1:51pm
JosephSlater (mail):
LAS:

Yes, the more extended answer is that Title VII also protects employees from retaliation for participation in Title VII claims or objecting to behavior that they reasonably believed could vioate Title VII. And I suppose in some cases an employer could make a work enviornment "hostile" enough to count as retaliation (FWIW, I disagree that the standard in Burlingon is particularly unclear). But to get back to the point I was making and that others were discussing, there's no way that any "hostile enviornment" claim would apply for this "Crackberry" alleged sort of situation.

As to the FLSA, first, whatever an employer may think, the fact that an employee is salaried does not in itself make the person exempt. Being salaried is a necessary, but not sufficient condition of being exempt (at least the major exemptions we've been talking about). Second, there are some fairly specific rules and rulings about when an employee who must carry a beeper/pager, etc. is "engaged to be waiting," such that the time must count as work toward the overtime trigger, and when she is merely "waiting to be engaged," such that the time does not. My guess is that with the exception of time actually spent reading/writing work-related messages, the "on-call" argument would fail, even if the employees were non-exempt.

If I understand your final paragraph about cultural lag correctly, then I think I agree.
9.8.2006 3:20pm
LAS (mail) (www):
JosephSlater writes, "...the fact that an employee is salaried does not in itself make the person exempt." Yes, and the reality: We pay you to carry the blackberry.

I agree that the on-call argument goes nowhere and we're back to who's exempt, who's not. If I understand your meaning, the 'waiting rule' only applies to non-exempt employees. If most of us exempt folk were declared non-exempt, that would reduce our salaries a whole bunch!

Regarding the alleged addiction, be careful what you wish for or carry the 'crackberry.'

Thanks, I really appreciate your insight. FWIW, I'm unclear about the new retaliation standard because Justice Breyer's comment seems to say 'case by case' and we'll have to wait on the case law for more direction.
9.8.2006 6:04pm
JosephSlater (mail):
LAS:

I agree that, when deciding on base pay rates, including salaries, employers take into account whether they will have to pay overtime to a given employee. And my guess is that most "24/7 blackberry carriers" are exempt. But some might not be (certain types of assistant jobs, e.g.) So, what could such an employee get? Since the on-call argument is likely to fail, the only "work time" that would have to be counted is time ACTUALLY SPENT sending or receiving work-related messages. And it would only matter if that time pushed the number of hours worked in a week over 40. Who knows if there are any good suits like this around.

As to the Burlington standard, there were lower courts using the standard the S.Ct. adopted. Like any legal rule, there will be close cases, but I don't see why this rule will be particularly troubling. I guess we'll see.

Again, of course, this has gone far afield from the original speculation about suing employers for "addicting" employees to PDAs, which I hope we can now all agree would almost certainly fail as a legal claim.
9.8.2006 6:28pm