Smartphones and mobile devices have become critical business communication tools in the workplace, making it essential for organizations to establish policies. This guide summarizes important things to consider in managing legal risks of smartphone use outside of work, providing smartphones to employees, creating smartphone policies, and allowing smartphone use at work.
Smartphone Use Outside of Work & FLSA Compliance
Increasingly, non-exempt/hourly employees may use smartphones and mobile devices after hours for work, which creates challenges for complying with the Fair Labor Standards Act (FLSA). In fact, a 2013 employment lawsuit involving policemen in Chicago seeking overtime pay for "off-duty" time using their Blackberrys clearly illustrates this risk.
Employers do not need to pay exempt employees for off-duty smartphone use; however, off-duty smartphone use is compensable if an employee is non-exempt under FLSA. Non-exempt employees need to be properly compensated for their time worked. As a result, organizations should consider the following for non-exempt employees:
- Restricting use of phones and mobile devices to standard business hours
- Requiring employees to leave phones and mobile devices at work (if they are company-owned)
- Recording all hours worked when using phones and mobile devices to perform work tasks
- Requiring written permission from supervisors before using phones and mobile devices during off-hours
- Mandating timecard approval by supervisors
- Training supervisors on FLSA
- Requiring employees to sign an agreement regarding the conditions of phone and mobile device use
Organizations should also regularly review hours worked, employee classifications, recordkeeping, and remote access logs to ensure that they are maintaining compliance.
Providing Employees with Smartphones
The question of whether to pay or not to pay for employees' cell phones and mobile devices is often asked on ERC's Help Desk. There's considerable evidence to suggest that paying for some employees' cell phones, if necessitated for business reasons, may be worthwhile.
The first reason is that the practice is becoming more common. ERC's 2013 Policies & Benefits Survey shows that nearly 83% of Northeast Ohio employers provide cell phones to at least some of their employees, and national findings are consistent.
- 84% of employers provide cell phones to at least some non-union employees
- 72% of employers provide cell phones to at least some clerical and technical employees
- 87% of employers provide cell phones to at least some supervisory, management, and professional employees
Of those providing cell phones, most pay for the entire cost of the phones. Reimbursing employees for business use of their personal cell phone is more uncommon, offered by slightly under half of employers surveyed. Fewer organizations (approximately 20%), however, provide other mobile devices such as IPads and tablets.
In 2011, ERC's research showed that only about 50% of organizations provided cell phones, with the exception of supervisory, management, and professional employees (75%). This suggests that providing cell phones to at least some employees is becoming a more common practice.
The second reason supporting the use of providing phones is that it can be much less risky and administratively cumbersome to pay for employees' phones. When personal phones are used for business, there can be a loss of data, privacy, security, control, and the ability to upgrade, monitor, and manage these devices and their use. There may also be added liability should a phone be lost, stolen, etc.
Creating Smartphone Policies: Common Elements to Include
If your organization decides to provide any employees with smartphones or other mobile devices as tools to help them conduct business, devise a policy and make sure that employees sign off on that policy or a similar agreement to the terms and conditions of company phone use. Below are some common elements that you may consider incorporating into your policy:
- Emphasize that mobile devices are to be used primarily for business purposes, that they are company property, and that personal use is discouraged.
- Specify actions that are considered misuse of mobile devices (e.g. downloading apps).
- Provide guidelines for internet browsing, texting, and the use of apps.
- Outline the consequences of inappropriate activity or misuse of mobile devices (e.g. disciplinary action including termination).
- Specify rules for using personal mobile devices to access company resources, such as email and servers.
- Prohibit cell phone use while driving (per Ohio law) or operating equipment (if applicable).
- Include guidelines for data privacy and security, such as setting up passwords and the internal procedure to use if a phone is lost or stolen.
- Summarize payment terms for personal use of cell phones (if applicable).
Allowing Smartphone Use During Work Hours
Finally setting some restrictions and guidelines for smartphone use during work hours in your employee handbook is advised. There are a couple different approaches you can take with your policies.
Particularly in the case of hourly employees, some organizations only allow phone use during breaks, at lunch, in the event of an emergency, or with authorization. Other companies do not permit the use of personal cell phones on company property; however this approach tends to be extreme and not recommended. Many organizations allow for a minimal amount of personal cell phone use during the workday in their policies, provided that it is not excessive or overly distracting. Be sure to include a statement in your policy that cell phone use should not disrupt business operations and it may present distractions to other employees.
Along the same lines, your organization may also want to provide some rules surrounding "cell phone etiquette," such as using silent or vibrate modes, seeking external or private space for personal calls, maintaining a low voice, avoiding use during meetings, and prohibiting cell phone use while driving.
Smartphones and mobile devices will continue to change how your organization does business and present challenges in the workplace, so be sure to update your policies and practices accordingly.
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.
ERC can provide answers to all of your HR questions, including cell phone polices and so much more, through our HR Help Desk which is staffed by certified HR professionals that provide answers to your questions within 1 business day. The HR Help Desk is an exclusive benefit for only ERC members.