Human Resources News & Insights

Why’s the DOL suddenly so interested in your workers’ cellphone usage?

The folks over at the Department of Labor (DOL) have expressed a keen interest in employees’ smartphone use, and that interest may force you to make some changes to your employment policies in the near future.   

At the Spring 2015 Regulatory Agenda, the DOL announced that it’s requesting info regarding:

“… [T]he use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours …”

While the DOL’s announcement makes no mention of its intention to draft regs on the subject, you can bet the feds aren’t looking into the subject simply for research purposes.

Tech muddied the waters

Technology has made tracking off-the-clock work a major pain point for employers in recent years.

Under the FLSA, employees don’t need to be required, or asked, to work beyond a 40-hour workweek to be entitled to OT pay – they must simply do so for the employer’s benefit.

But the FLSA does say that “de minimis” work (typically five minutes or less) done beyond the 40-hour workweek by non-exempt employees is not compensable.

However, the common practice of workers’ reading and responding to emails off the clock on their smartphones has complicated the issue of “de minimis” work.

And a number of lawsuits have sprung up as a direct result of non-exempt employees’ off-the-clock activities.

Limiting your firm’s exposure

Regardless of what the DOL does with the information it gathers on workers’ smartphone habits, there are certain steps HR and benefits pros can take to safeguard their firms from legal issues.

If your firm allows non-exempt employees to use their smartphones outside of work hours, employment attorney Jon Hyman suggests:

  1. Audit the status of exempt employees. Regularly review that exempt employees are, in fact, classified correctly.
  2. Look into an email curfew policy. Essentially, this is a policy (stand-alone or part of your technology or BYOD policies) that prohibits non-exempt employees from emailing off-duty.

To enforce the policy effectively:

  • add network controls where email can’t be accessed by workers who are off-the-clock
  • discipline employees who perform unauthorized work, and
  • suspend email or remote access privileges of workers who violate the policy.


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