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Does Use Of Personal Mobile Devices Increase Your Family's Exposure To Wage And Hour Violations?

Five years ago, only a third of employers said they had a bring-your-own-device (BYOD) policy—now, almost all employers do, according to one expert.

BYOD policies allow staff to use their personal smartphones and tablets to access work email and other accounts. However, employers must make sure that workers are paid for all hours worked, including when working from mobile devices outside of the workplace.

Although the Fair Labor Standards Act (FLSA) allows employers not to pay for "de minimus" time worked by staff, it is a limited exception for very small amounts of time that are difficult to track. In fact, the exception has been challenged in court, with a ruling for California employers in which the court set aside the FLSA "de minimus" rule and instead held that every minute worked must be tracked and paid for.

The DOL stated in 2015 that it planned to develop rules governing work performed on portable devices. Although it has not yet released these rules, it still pursues mobile device-related wage and hour violations in the meantime. Lisa Nagele-Piazza "Tips for Managing Workers' After-Hours Use of Mobile Devices" (Jun. 15, 2018).

Commentary and Checklist

Mobile technology enables staff to work from anywhere. Unfortunately, non-exempt staff working off-the-clock, and not being paid for the time, creates exposure for family employers.

Reading and sending emails or answering calls from work are compensable work tasks. Family employers should require staff to only perform these tasks during their normal work hours in the workplace, if possible.

Family employers must create a written policy stating which staff is allowed to perform work on personal devices and for what purposes. Prohibit staff from working off-the-clock. Require them to get managerial approval before performing work outside of their normal hours. Have staff use a time tracking app or other mechanism for tracking all time worked outside of the workplace.

Train your supervisors and managers to never ask staff to work after-hours. Make sure they only request staff to perform the amount of work that staff can accomplish during their regular hours.

If you do allow staff to BYOD, make sure your policy also addresses privacy and cybersecurity issues. State that you may access work-related data sent from personal devices, and that the staff person is not allowed to keep any work information on personal devices when he or she leaves the organization.

Train all staff that BYOD on cybersecurity best practices. Require them to password protect all personal devices that they use for work, and use a unique, strong password on all work-related accounts. Require staff to notify a supervisor immediately if a personal device containing work data is lost or stolen.

Discuss the following with staff to make sure they do not violate wage and hour policies when using mobile technology:

  • If paid hourly, make sure to count any time spent performing work duties on mobile devices outside of the workplace as hours worked. This includes replying to an urgent email, taking a work-related call, or booking a flight ticket for work-related travel.
  • Submit accurate records of all hours worked, whether in or out of the workplace.
  • Do not perform any work, including checking emails, during unpaid breaks.
  • If it is not necessary to check work email, wait to check it until you are back in the workplace.
  • Managers should avoid contacting staff during their off-hours unless it is urgent, and should not expect a response to email sent when staff is away.
  • Promote a mindset of only performing work outside of the workplace when absolutely necessary. Let staff know that you or a manager will only call when they are out of the office if it is urgent.
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