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DEVISING A POLICY ON DEVICES – SMART PHONES AFTER HOURS
By Sandy Seay

10/27/2015 - We live in a digitally connected world of laptops, Wi-Fi, tablets, smart phones and smart watches, which is very different from a few short years ago. The Digital Revolution is moving forward at warp speed. Millennials and the younger generations, in particular, don’t know what it’s like to write things down on a piece of paper (you know the definition of “younger” -- “younger than me . . .”).

Today, virtually everything we do is digital. I was in a client meeting with my daughter recently and as I was furiously taking notes on my paper tablet, she was calmly doing the same thing on her digital tablet. My client friend said with a grin, “This is the difference in the generations!” And, thus, we have a new definition for an old word, as has been the case so many times in the Digital Revolution – “device,” which is to say, a mobile electronic communications tool.

The workplace mirrors society and what goes on in society is ultimately going to make its way into the workplace. Examples include sexual situations at work, violence in the workplace, bullying behavior at work and . . . smartphones and other devices at work. Most of today’s employees come to work with a smartphone, which they may leave on during working hours and check frequently during the day, all of which requires employers to develop a policy on “Smart Phones at Work.”

When the workday ends, some non-exempt employees take their smart phones home with them. So far so good – until the non-exempt employee begins to use the smartphone at home to make or answer calls, check email or to text message others at work. All of a sudden, we have a non-exempt employee doing work at home, work that must be recorded as work time and paid for by the employer.

This principle applies to non-exempt employees only – exempt employees may use their smart phones as much as they like, with no wage and hour implications.

WORKING TIME ACCORDING TO THE DEPARTMENT OF LABOR

The Department of Labor defines working time as any time an employee is “suffered or permitted to work.” In plain English, this means that you must pay an employee for all of the time an employee is working, even if you didn’t authorize it, and even if you didn’t know about it. If an employee is at the workplace, this is somewhat easier to manage and control, but if an employee is working at home, it becomes much more difficult and uncertain. Here are some examples and some recommendations.

Key Principle – If a non-exempt employee is using his or her smart phone on company* business, at home or during non-work hours, this is compensable work time. The employee must record the time and it must count toward his or her total weekly hours.

*We are using the term "company" for convenience, but this material applies to all employers, whether a company, church, bank, agency, educational institution, medical office, surgery center or other employer.

Supervisors Calling Employees After Work

Sometimes supervisors contact employees at home on their smart phones. If so, they should be told that this is compensable work time for the employee and they must make sure employees record this time and are paid for it. Employers may want to instruct supervisors not to call employees at home after working hours, unless it is an emergency or unless they clearly understand that this after work time on the smart phone constitutes compensable work time for the non-exempt employee.

Company Provided Phones vs. Personal Smart Phones

From a practical view, it does not matter whether the employer provides the phone or whether the device is a personal phone owned by the employee – if the non-exempt employee is using the phone or other device, like a tablet, to conduct company business, it is still compensable work time. However, if the employer tells the employee, “We are providing you with this phone so that we can contact you whenever we need you,” then the stage is set for compensable work time taking place after normal work hours and, if the employee later claims that he or she was working at home on the smart phone, it will be very hard to argue that the employer did not know about the compensable work time.

Is On Call Time Regarded as Compensable Work Time?

On Call Time is when an employee is “on call” after working hours, subject to being called in, if necessary. According to Wage and Hour regulations, On Call Time is not compensable work time, so long as an employee is free to move around and is not restricted to staying home, for example. Smart phones have rendered this definition almost useless because it is in the nature of mobile phones to be mobile. Thus, if an employee is on call and is required to carry around a smart phone after work, the act of carrying around the device, standing alone, is not compensable work time, since the employee is free to go to the movie or the grocery store or wherever, so long as he or she has the device available. However, if the employee actually uses the device to make or receive calls, emails or text messages, and if the employee is non-exempt, then he or she is engaging in compensable work time and this time should be recorded and counted toward the employee’s total weekly hours.

A Good Policy for Smart Phones and Other Devices

Employers should develop and communicate their policy on the use of smart phones and other devices during non-work hours to employees, supervisors and managers, and the policy should accommodate the employer’s goals and objectives. For example, if the employer needs to contact employees after work hours, then employees and supervisors should be instructed that this is compensable work time and employees are to record this time and it will count toward their total weekly hours. On the other hand, if employers do not want employees to engage in company business after hours, they should be told either to turn off their phones after a certain time, if the employer provides the device; or, if the employee owns the device, told explicitly not to engage in business related calls, emails or text messages after work.

A Walk into the Mists of Uncertainty

By implementing and managing the policies we’ve discussed so far, we’ve covered a good deal of the landscape associated with smart phones and other devices. However, what happens if an employee doesn’t abide by the policy? What happens if an employee, perhaps one who is being dismissed, says to you, “By the way, I’ve been making customer calls at home on my smart phone device for the last couple of years, about an hour a night, so you owe me $10,000 for this time.”

In its defense, the employer might say, “We’ve developed and managed the policy the best we can, and we’ve instructed employees to record their time, and other employees have abided by the policy and recorded their time, and there is no evidence that you have used your device at home, so we have no reason to believe that actually used your phone to conduct company business, so we don’t owe you anything.”

At this point, this is an evolving situation and it is anyone’s guess where the matter may end. The Department of Labor is looking into the question of smart phones at work at the moment and may provide an opinion about di minimis smart phone use sometime soon, but I am not optimistic that this will be helpful to employers.

SAMPLE POLICY

“Employees who have smart phones provided by the company are to use these devices for company business only. Use of the device for calls, emails or text messages after work is prohibited unless this has been authorized in advance or in the case of an emergency. Under those conditions, if you make or receive a call, email or text message that is work related, you must record this time and it will count toward your regular weekly hours. Supervisors are required to oversee this policy and make sure it is implemented properly. [Or, if the company would prefer, you can use this language. . . Employees must turn off the smart phone when leaving work at the end of the day and turn it on again when arriving at work the next day.] Employees who have personal smart phones fall under this same policy.”

This policy should be included your employee handbook. If you have any questions about the use of smart phones or other devices after work hours, please call or email us and we’ll work through the issue with you so that you’ll have the right answer. And visit our web site at www.seay.us. We appreciate having you as a friend and client of our firm and look forward to talking soon.



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