[IMGCAP(1)]Employers are being urged to put in practice guidelines for use of company wireless devices like BlackBerries and iPhones, states a new bulletin from Pepper Hamilton LLP. Amy McAndrew, an attorney with the firm, says that new provisions under the Fair Labor Standards Act may compel employers to pay overtime for employees responding via electronic message in off hours.

Courts have found that "insubstantial or insignificant periods of time" are considered de minimis (minimal), and do not need to be counted as compensable work time. "However, the regulations interpreting the FLSA say that working as little as 10 minutes per day should not be considered de minimis under the law. Therefore, if a nonexempt employee uses technology such as a cell phone, a remote Internet connection, or a BlackBerry outside of regular work hours and, as a result, works more than 40 hours per week, that work may have to be compensated as overtime," McAndrew said.

McAndrew suggests creating written policies governing off-hours work on wireless devices and laptops. The policies should include:

  • Limiting the amount of time that non-exempt employees can spend using these devices outside of normal work hours.
  • Requiring nonexempt employees to receive permission before using these devices after normal work hours.
  • Requiring nonexempt employees to report all work time outside of normal working hours to ensure payment for work completed.

Furthermore, employers should beware the dangers of employess who use company-issued cellular devices while operating motor vehicles. Employers should consider the potential liabilies that could result from an accident and modify policies accordingly, McAndrew states. She suggests the following policies be put in place:

  • Requiring the use of hands-free cell phones while driving.
  • Directing employees to comply with applicable state laws governing cell phone use."If an employer operates in a state that does not have a law forbidding hand-held cell phone use while driving, this action alone may not be sufficient to avoid liability related to accidents involving employees working within that state," said McAndrew.
  • Requiring employees to pull their cars over to the side of the road before answering cell phone calls.
  • Requiring that employees do not pick up cell phone calls while driving, unless it is an emergency.
  • Limiting the scope of job descriptions to avoid including the use of cell phones while driving.
  • Prohibiting cell phone use while driving in adverse weather or difficult traffic situations.
  • Emphasizing the importance of safety while taking calls on the road.

"It is vital that employers carefully consider the use of technology by their employees and adopt clear, written policies as a means to mitigate potential liability," McAndrew said.**This Tip was adapted from a WorldatWork.org news bulletin

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