Employer Need to Adopt Clear Polices Regarding After-Hours Use of BlackBerries and Cell Phones

PHILADELPHIA (LAWFUEL) – July 23, 2008 – Before employers hand out BlackBerry or other wireless devices that can keep employees in continual contact with the workplace, or encourage workers to take business calls while on the road, they need to be aware of their potential legal liability, according to Pepper Hamilton LLP, a multi-practice law firm (www.pepperlaw.com).

Laptops, BlackBerries, and other wireless devices intended to connect employees to the office outside of normal working hours can present potential legal dangers for employers under the provisions of the federal Fair Labor Standards Act (FLSA) and state overtime laws, according to Amy McAndrew, an attorney with Pepper Hamilton.

“In our high-tech, highly-connected work world, determining whether a non-exempt employee is working overtime for which he or she should be compensated can present challenging issues for many employers,” said McAndrew.

Courts interpreting the FLSA have stated 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 non-exempt 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.

“Company management is responsible for controlling the use of this outside technology. They cannot simply accept the benefits of employee work without proper compensation,” she added.

Although Pepper Hamilton is not yet aware of lawsuits being filed regarding claims for overtime pay based on the use of outside technologies such as BlackBerries and laptops, given the number of FLSA class actions being filed in general over the last several years, companies should be aware of this potential vulnerability.

“To protect against these types of claims, it is vital to create and enforce written policies regarding the use of technology outside of normal work time. For example, employers should consider updating their employee handbooks, and implementing policies regarding the use of devices such as cell phones, BlackBerries, and laptops, during traditionally non-work time,” McAndrew said.

According to McAndrew, these policies should include:

– Limiting the amount of time that non-exempt employees can spend using these devices outside of normal work hours.

– Requiring non-exempt employees to receive permission before using these devices after normal work hours

– Requiring non-exempt employees to report all work time outside of normal working hours to ensure payment for work completed

While employee use of technology such as BlackBerries may present employers with employee compensation issues, workers’ use of cell phones can present employers with even a more serious issue: the physical safety of employees and third parties when workers use their cell phones in the car.

“Virtually all employees have either personal or business cell phones, and many workers use these phones for work-related calls. Not surprisingly, over the last decade, claims against employers for accidents involving employees’ cell phone use while driving have steadily increased,” said McAndrew.

“Employers should carefully consider what message they want to send to their employees regarding the use of cell phones for business-related calls, given the potential liability risks,” McAndrew added. “Because an outright ban on cell phone use by employees while driving is unlikely to be effective, employers should have in place clear, written policies and safety guidelines as a means to keep employees and the public safe and to mitigate potential liability.”

Employers should consider including some or all of the following elements in their cell phone use policies:

– 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.

“As with so many other issues that face employers today, the new technology that can help their businesses to run more effectively and competitively can also present significant legal challenges. 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.

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