The quarterly publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/27607
The Downside of Mobile Devices in the Workplace The Overtime Dilemma I check my BlackBerry (and my Android…and my iPhone) several times in the evening after work. By law, that’s acceptable because, as a member of the management team and a salaried employee, I am exempt from the FLSA overtime requirements. My hourly employees, however, are subject to overtime regulations, and must be compensated accordingly for any time worked in excess of the federally mandated 40-hour work week — even if it is done voluntarily. When these employees are in the office, it’s easy to keep track of the time they are working. When they are responding to e-mail messages on their smartphones after hours, it becomes a more complex issue. Not only does it raise the question of how much overtime the employee actually worked, we must also consider whether the overtime was authorized. Many employers are learning these lessons the hard way. In the landmark case involving this issue, three hourly employees sued T-Mobile, claiming they were required to respond to work messages after hours using their company-issued smartphones, without compensation. That case was followed by a suit against CB Richard Ellis Group, Inc., brought by a maintenance worker seeking overtime pay for receiving and responding to messages on his work cell phone after hours. Even government entities are starting to face this issue. The city of Chicago is currently embroiled in a lawsuit brought by Chicago police officers — all of them non-exempt employees — who are alleging that the city violated FLSA by failing to pay them for time worked via smartphone while “off-duty.” Preparation for the Mobile Office Organizations need to take a proactive stance, and prepare for the onslaught of shiny new smartphones and tablets without incurring risk. Where to begin? Administer Smartphone Usage Policies It’s no longer enough for firms to restrict the distribution of smartphones to exempt employees, for whom the issue of after-hours compensation is moot. Non-exempt employees are bringing these devices into the workplace in droves, adding even greater ambiguity to the issue of after-hours compensation. Whether they’re being asked by their supervisors or simply trying to be diligent, hard-working employees, non-exempt workers are logging millions of off-the-clock hours each year when they respond to customer and internal phone calls, e-mail messages and text messages while not logged into the company’s timekeeping system. When organizations give non-exempt employees access to the network, they need to administer and enforce a policy that these workers are not expected to return phone calls or e-mail messages outside of the agreed-upon workday, unless authorized to do so. If the employee still chooses to do so, there should not be an expectation of compensation. 3. Protection Through Policies If the growing number of employee lawsuits like these are any indication of what’s to come, then now is the time to implement and enforce a personal device strategy. Until the law is clarified and the U.S. Department of Labor, the agency that administers FLSA, comes up with a plan on how to handle personal technology in the workplace, employers must proceed carefully. A good place to start is by implementing policies that limit liability, and create clear guidelines for mobile device usage and after-hours compensation. Admittedly, there are many gray areas to consider. 1. Organizations must consider who is responsible for tracking overtime — the employer or the employee. If time tracking is left to the employee, the employer must implement a system to ensure that time is recorded accurately, even when the employee is off-premises. 2. The question of overtime compensation for salaried employees is now beginning to come to the forefront. In the pre-smartphone era, when an employee left the office, they were far more likely to actually stop working. With mobile devices came the expectation that salaried employees would be connected and available 24/7, significantly increasing the number of hours that employees are actually working, with minimal difference in compensation. Employers must prepare for the possibility that the courts, in cases such as those discussed here, might find that overtime compensation for after-hours smartphone use is required — regardless of whether the device is employee- liable or the overtime was authorized. 4. In addition to concerns about smartphone- based overtime, employers must also carefully consider the privacy and security implications of employee-liable devices in the workplace. Peer to Peer the quarterly magazine of ILTA 75