Tips for Managing Workers' After-Hours Use of Mobile Devices

Technology has made it easy for workers to stay connected all the time, so what can businesses do to ensure nonexempt employees aren't working off-the-clock hours on their mobile devices? Here's what employment law attorneys told SHRM Online.

Employers should have clear, comprehensive policies governing time reporting and employee use of mobile devices—whether those devices are personal or company owned, said Peter Stuhldreher, an attorney with Reed Smith in Houston.

Many employers have bring-your-own-device (BYOD) policies, allowing workers to connect their personal smartphones and other portable devices to their company e-mail and social media accounts.

"When I would poll employers at my BYOD seminars about whether their employees use their own devices for work, even five to seven years ago, about a third of the room would raise their hands," recalled Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago. "When I ask the same question now, almost all hands go up."

While it's realistic to expect that most employers will have BYOD programs in some shape or form, employers should set thoughtful parameters on which employees may use these devices and for what purposes, she said.

Susan Schaecher, an attorney with Fisher Phillips in Denver, suggested that employers not give nonexempt employees access to work e-mails through their mobile devices unless there's a business need. Additionally, written policies should make it clear that off-the-clock work is not acceptable and will have consequences, she said.

Employers should periodically monitor e-mail traffic to check for unauthorized use after regular business hours and remind employees about the company's policy, said Rebecca Bennett, an attorney with Ogletree Deakins in Cleveland. "Do not forget to remind supervisors of the policy, as employees typically respond after hours because of pressure or expectations from supervisors."

Perhaps it's not realistic for some employers to prohibit off-schedule use of mobile devices. As a practical matter, there are increasingly more apps that allow mobile time-keeping, so employers and employees can use such apps to capture time worked on mobile devices after hours, said Bill Nolan, an attorney with Barnes & Thornburg in Columbus, Ohio.

The Department of Labor (DOL) and the plaintiffs' attorneys routinely pursue off-the-clock work violations under federal and state wage and hour laws, noted Linda Horras an attorney with Hinshaw & Culbertson in Chicago. "That includes work that is performed remotely."

Wage and Hour Laws

The federal Fair Labor Standards Act (FLSA) sets the nationwide minimum hourly wage and also requires employers to pay workers 1.5 times their regular rate of pay for all hours worked beyond 40 in a week (unless they fall under one of the statute's exemptions).

Employers should note that some states have more-generous wage and hour laws and may provide for higher minimum wages, as well as daily overtime pay.

[SHRM members-only toolkit: How to Determine Overtime Eligibility in the United States]

Under the FLSA, there is an exception for "de minimis" time—a trivial amount of time that is difficult for employers to track. But that's a limited exception to the rule. Furthermore, the de minimis rule is currently being challenged under California law because technology has made it easier to track small amounts of time worked.

"For the most part, work is work from an employment law point of view," Horras said. "There is the legal requirement to record all time worked and compensate accordingly for all nonexempt staff."

Reading and sending e-mails, responding to phone calls and related duties may be—and often are—compensable and thus should be performed when the employee is at work on company time, Horras noted. "Company policies should state this."

Federal Guidance

Although the DOL announced plans in 2015 to develop rules on portable devices, it hasn't issued any regulations yet. "By no means is this an indication that the DOL no longer cares about this issue," Horras said.

With the DOL's focus on wage and hour issues and the expanding use of mobile devices in the workplace, it would not be surprising if the DOL offered some additional guidance in the next year or so, Stuhldreher said.

In the meantime, employers are best advised to implement appropriate policies and best practices for their BYOD programs to help minimize potential legal pitfalls and maximize productive use of these devices, Rosenberg added.

Employer Policies

Whether employers should permit employees to use mobile devices for work depends entirely on the industry, atmosphere and culture of the workplace, Bennett said.

If employers allow access to the company's information via personal devices, they should have a thorough mobile-device policy that addresses important issues, including privacy, ownership, acceptable use and what happens when employees leave the company, she added.

Employers need to clearly communicate that employees must report all of their working time and that there are no exceptions for after-hours e-mails and texts, Schaecher noted. They should tell workers exactly how to report that time and monitor whether the devices are connected to the company's information systems after hours.

Policies should include a procedure for employees to regularly review their reported hours and to notify the employer if they believe they have worked unreported or unpaid time, Stuhldreher suggested.

Employers must promptly address any policy violations and let workers know that unauthorized work will not be tolerated. It is easy to see when an e-mail was sent outside of regular work hours, unless an employee has found a way to circumvent detection, Nolan said. "Most of us are addicted to our mobile devices, so employees will violate the policy, and the company needs to promptly address that when it happens."