The same BlackBerry or cell phone you gave your employee to boost his or her job performance could do more than you bargained for—it could enmesh you in legal trouble. Before employers hand out BlackBerry or other wireless devices that can keep employees in continual contact with the workplace, or encourage workers to take business calls while on the road, they need to be aware of their potential legal liability, warns Pepper Hamilton LLP, a multi-practice law firm. Here are some points to keep in mind about those pesky mobility devices:
- Laptops, BlackBerries, and other wireless devices intended to connect employees to the office outside of normal working hours can present potential legal dangers for employers under the provisions of the federal Fair Labor Standards Act (FLSA) and state overtime laws, says Amy McAndrew, an attorney with Pepper Hamilton. "In our high-tech, highly connected work world," she explains, "determining whether a non-exempt employee is working overtime for which he or she should be compensated can present challenging issues for many employers."
- Courts interpreting the FLSA have stated that "insubstantial or insignificant periods of time" are considered de minimis (minimal), and do not need to be counted as compensable work time, says McAndrew. "However, the regulations interpreting the FLSA say working as little as 10 minutes per day should not be considered de minimis under the law. Therefore, if a non-exempt employee uses technology such as a cell phone, a remote Internet connection, or a BlackBerry outside of regular work hours and, as a result, works more than 40 hours per week, that work may have to be compensated as overtime."
- "To protect against these types of claims, it is vital to create and enforce written policies regarding the use of technology outside of normal work time," says McAndrew. "For example, employers should consider updating their employee handbooks, and implementing policies regarding the use of devices such as cell phones, BlackBerries, and laptops, during traditionally non-work time."
- Mobility policies, McAndrew suggests, should include limiting the amount of time non-exempt employees can spend using these devices outside of normal work hours; requiring non-exempt employees to receive permission before using the devices after normal work hours; and requiring non-exempt employees to report all work time outside of normal working hours to ensure payment for work completed.
- There's also a safety issue to consider. While employee use of technology such as BlackBerries may present employers with employee compensation issues, workers' use of cell phones can present employers with an even more serious issue: the physical safety of employees and third parties when workers use their cell phones in the car. "Because an outright ban on cell phone use by employees while driving is unlikely to be effective," says McAndrew, "employers should have in place clear, written policies and safety guidelines as a means to keep employees and the public safe and to mitigate potential liability."
How do you manage use of the mobile devices you supply workers with? Do you worry you're making it impossible for them to disconnect and get refreshed before the next work day? Join the discussion on Training Day.
Note: Looking to better monitor your employees' technology usage? If so, click here to read Training's September cover story,"They're Watching You...."