Employers need to spell out their policies for off-hours use of mobile devices for work purposes or they risk racking up unnecessary overtime.
Mobile devices have worked their way into virtually every area of our lives, both at work and at home. You may even be reading this blog on a smart phone or tablet right now.
But as convenient as those devices may be, it’s important for employers to keep the same wage and hour rules in mind for time spent on mobile devices as for work done in the office during regular working hours.
Under the Fair Labor Standards Act, time spent by hourly employees doing work can be considered overtime if it’s in excess of 40 hours in a week. For exempt employees those late night email responses don’t create any major challenges, but potential problems may arise when nonexempt employees are using mobile devices outside the office after hours.
Employers should create policies to help avoid problems from mobile device use, whether they’re work-issued devices or personal ones. At a bare minimum a policy needs to spell out who is allowed to use devices, in what ways and what the repercussions are for violating the rules.
Employers can best shield themselves from surprise overtime claims linked to the off-hour use of mobile devices with policies that specify, for example, that:
- Employees are not required or expected to check company email off-the-clock.
- Employees who make an individual decision to check company email off-the-clock using their own personal devices will not be paid for doing so.
- Checking and/or responding to company email using a personal device is a violation of company policy.
Once an employer has a policy in place it’s important, as with any policy, to follow through on training managers to enforce the policy. With the rising use of mobile devices it’s more important than ever that managers understand the implications of communicating with employees outside normal business hours — a manager’s tendency toward late night email exchanges with hourly workers could open an employer up to overtime claims.
There’s no one-size-fits all policy. For workplaces with hourly workers whose jobs come with special requirements — think police officers — developing effective policies can be particularly challenging.
Don’t let the challenges overwhelm you. Given that the 50-year-old FLSA does not inherently address the many issues created by mobile technology, experts agree that new areas of disputes around mobile device use outside the workplace are likely.
Subscribers to Thompson’s four FLSA publications should look to upcoming issues of their newsletters for more information about how to approach overtime issues stemming from employee use of mobile devices and tips for dealing with social media pitfalls.