Are Employees on Leave Talking and Texting? (FLSA)

[Go here for risks 1 to 5.]

6. Fair Labor Standards Act Risks

For exempt employees, employers must pay the full salary for any workweek, regardless of the number of days or hours worked. Therefore, if an exempt employee is on an unpaid leave of absence and uses an electronic device to check or respond to work-related emails, for more than a de minimus time, the employee may be entitled to his or her salary for the entire week. Plus failure to pay could result in the employee losing his or her exempt status, says Beachboard, who is a shareholder in the Los Angeles office of employment law firm Ogletree Deakins.

What’s de minimus? Beachboard says that 10 minutes or more of time on the phone, cumulative, probably is more than de minimus.

7. Physical Use of Personal Devices

Suits against employers involving cell phone-related accidents occurring outside normal working hours and those involving employee-owned cell phones and vehicles are succeeding if there is any connection to work, such as talking to a client.

The trend is that courts are more willing to entertain vicarious liability claims even when the actions are not within the typical course and scope of employment, says Beachboard.

For example:

• A Florida judge awarded over $14 million to a van driver who was struck head-on by a company box truck whose driver was on a cell phone.
• A Virginia law firm settled a $30 million lawsuit for an undisclosed amount after an attorney stuck and killed a 15-year-old pedestrian while talking on her phone with a firm client—the attorney had dropped the cell phone on the floor of her car.

8. Privacy Issues

Employers that intentionally view an employee’s personal data which is kept on his or her company-owned device may be guilty of invasion of privacy. Work to decrease the expectation of privacy, says Beachboard. The law isn’t clear in this area, but you don’t want to be the ones that create new law, he says.

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9. Discriminatory Employment Decisions

Most companies are using Facebook or LinkedIn for recruiting to some extent, and many search for information about current employees. The problem is that you are going to learn protected information, and once you have seen it, there is no going back.

By the way, says Beachboard, you may have a policy against doing these searches, but your supervisors and managers are doing them anyway.

10. Textual Harassment

There’s a danger of email and texting harassment, and texting is especially dangerous. There’s a misperception that texting is different, says Beachboard, but it’s not.

There is a texting transcript that can be recovered. It will no longer be “He said/she said,’ Beachboard notes. It will be, “Let’s go to the transcript.”

11. NLRB

The National Labor Relations board has taken an interest in any policies that might discourage employees from discussion terms and conditions of employment. In one company with a non-disparagement policy, an employee called the boss “scumbag” and “dick.” The NLRB found that to be protected activity.

New aggressive NLRB, never-ending new challenges relating to e-devices—in HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.

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You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:

Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.

E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.

Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.

We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)

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