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August 15, 2008
Off-the-Clock Use of Smartphones Creates Problems

Technology provides a means for employees to stay connected to the office during off-hours. In many cases, that is beneficial to both employees and employers. However, it becomes a potential problem if nonexempt employees claim their employer owes them for uncompensated time.

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Door Open to OT Suits

Years ago, employees who worked at home had to lug a stack of papers with them, and there was no proof that they actually did work. However, technology has made it easier, and more readily acceptable, for employees to tackle work after hours, says Chad A. Shultz, J.D., LL.M., a partner at Ford & Harrison LLP, a labor and employment law firm. And, he adds, technology also creates a "trail" showing when employees work.

Under the Fair Labor Standards Act (FLSA), employers must compensate nonexempt employees for all hours worked. Even if an employer has not authorized an employee to work after hours, the individual must be paid for his or her time, Shultz says.

With the surge in the use of BlackBerry® and other handheld devices, Shultz advises employers to be proactive about warding off potential overtime lawsuits.

Although a company-issued BlackBerry is most likely to go to a salaried employee who is exempt from overtime, he says nonexempt workers could state a claim even if they respond to company e-mail via their own BlackBerry or personal computer.

For example, if an employee responds to e-mails from his or her supervisor after clocking out, the e-mails could be used as evidence that "the employer knew or should have known" that the employee was working after hours, according to Shultz.

Adhere to a Firm Policy

Employers should adopt--and adhere to--a firm policy when it comes to BlackBerry use: "Do not let employees work off the clock," Shultz says.

Although policy specifics will vary by company, he offers the following general advice:

  • Outline expectations. Tell nonexempt employees not to work overtime without prior approval or specify that you do not expect them to work from home. If you tell nonexempts that you are issuing a BlackBerry to each of them so you can always reach them, be prepared for a potential lawsuit because such a statement "encourages them to do work off the clock," Shultz says.
  • Stress the importance of maintaining accurate time records. Make it clear that you expect employees to record all of their time worked on their time sheets. Have workers sign their time sheets or a statement attesting to the accuracy of electronic time sheets.
  • Train managers. "Communicate the rules to your managers and supervisors, and make sure they are not encouraging employees to do any work they're not being compensated for," Shultz says.

If an employer is sued, it should be able to point to documentation that the policy was clearly communicated to employees, he says. 

Notices on bulletin boards and intranets and periodic e-mails can help spread the word about your policy, as can information conveyed in training, your employee manual, and your annual meeting. 

"You can't communicate too much," emphasizes Shultz.

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