415 812 6647 manuella@mwhcopy.com

Just like email, cellphones are a critical business commuication devices. Employees have an email address that is either personalized or assigned to the employee’s work, and it makes practical sense to issue your employees a business cellphone. However, unless you make an enforce a policy to leave the business phone at the office, chances are the phone will go home with the employee, and this raises compensation issues.

Under Fair Labor Standards Act rules, if a non-exempt employee (i.e. hourly) is doing work off site that the employer knows about – or should reasonably have known – then the employer is required to pay for the time incurred by that employee. Assuming your employees work a full forty-hour week at the office, then that off-site work could qualify as overtime.

If an employee has a cellphone and access to work email offsite (like on the cellphone itself!), it’s easy for her to to take work with her when she leaves work. However, there are three policies that should address this potential problem:

  1. Overtime Authorization: You should require overtime needs to be authorized in advance. Remember, it’s not enough to have this policy. Make sure to have a clear record of how you authorize overtime, so there’s no room for confusion.
  2. Email/Cell Phone Usage: You should clearly outline the ways in which employees are allowed to use their email accounts and their cell phones. That policy should include a reminder that the employee is not to use these for unauthorized overtime work.
  3. Work-Life Balance: You should have a clear statement of your company’s belief in a work-life balance. This policy is good HR practice, and it is another place to remind employees to not do any unauthorized overtime.

In addition to policies, if you notice that you are receiving email from an employee after hours, put a stop to the practice immediately. Ask your employee to account for time actually spent on the email, and pay the employee out for that time. Since FLSA and most state equivalents make employer’s strictly liable for overtime, you do not want to let these issues fall through the cracks. While this may appear to be unnecessary extra work, this will make your business guidelines regarding the use of email after business hours.

Your employee handbook is the best way to make certain these policies are clear to employees. While making sure your employees have the right tools to communicate on the job, you do not want these tools to be misused and result in potential exposure to an unpaid wage claim. Remember, if you have a handbook, you should make sure every employee gets a copy and signs a receipt. When you take a proactive stance on addressing how employees both use and account for work done with business email and cellphone, you are taking steps to protect your business.

Manuella Hancock | 415 812 6647 | manuella@mhcopy.com

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