When you are punching messages into your blackberry from the dance bar — are you working? If you are working, does that mean that you can charge overtime rates.

An article in today’s Wall St. Journal discusses the issue. From the article:

The next front in the ever burgeoning field of wage-and-hour litigation? Blackberrys, according to a story in the National Law Journal.

According to the story, litigation could be “just around the corner,” filed by employees who will claim overtime for all the hours they’ve spent typing away on their Blackberrys, cell phones, or other communication devices.

“We’ll see it; it’s only a matter of time,” said Jeremy Roth, a lawyer in the San Diego office of Littler Mendelson. Roth said he has cautioned several clients about the issue in the last year, advising them to get policies in place. Added Roth: “Before there was at least an argument that no, the employee is not being truthful when they say, ‘I did all this work after hours.’ But now, that swearing contest is taken out of the mix.”

Strategies for employers could include requiring permissions to use a blackberry after hours or making an explicit agreement that the freedom of working remotely comes with an implicit agreement that hours get stretched (or, hey, N-Geners you can’t have it both ways). Or, as someone posted in the discussion section of the article:

The receipt of an email or the ringing of a phone do not require a response. Instead of suing, how about ignoring?