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Supreme Court enters decades-old overtime debate

Nancy Marshall-Genzer Apr 16, 2012

Sarah Gardner: The Supreme Court heard arguments today in a closely watched case over whether drug companies have to pay overtime to their sales reps. The outcome will affect the roughly 90,000 folks that visit doctor’s offices everyday, trying to convince them to prescribe their particular drug to patients.

But the case does have implications for the rest of us as well, and it raises larger questions about the way we work now, tethered to the office by technology. Marketplace’s Nancy Marshall-Genzer reports.

Nancy Marshall-Genzer: The GlaxoSmithKline case is one of a flood of lawsuits filed by workers for overtime pay. Some complain of forced, unpaid overtime, sometimes doing the work of colleagues who were laid off.

Catherine Ruckelshaus is co-director of the National Employment Law Project.

Catherine Ruckelshaus: They’re doing clean up or prep work or filing reports. And they’re not getting paid for that.

Attorney Richard Alfred of Seyfarth Shaw represents employers in overtime lawsuits. He says filings of these cases in federal courts have shot up more than 325 percent over the past decade. He says just a handful of those involved employees checking their email off hours. Alfred himself is on his Blackberry…

Richard Alfred: All the time.

Alfred thought there’d be a flood of lawsuits from workers seeking overtime for checking email off hours. He says there’s just been a trickle because off-duty workers are only on glancing at their emails, maybe for five or 10 minutes. But he says the law isn’t clear on when that’s overtime.

Alfred:  So what constitutes work is still not clear.

That could change if the Supreme Court helps define overtime in the GlaxoSmithKline ruling.

Marc Bayard heads the Worker Institute at Cornell. He says, yeah, five minutes on email off hours is no big deal. But he worries about workers who are expected to be available online all the time.

Marc Bayard: If people are expected to do the work, then they should get paid. And for a number of workers, that seems to not be the case, and I think that’s an alarming trend.

He says workers should be able to unplug. He admits checking his email a couple of times an hour after he gets home from the office, but he makes himself stop after nine.

In Washington, I’m Nancy Marshall-Genzer for Marketplace.

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