BYOD & FLSA

You may recall our article in The HR Advisor dated September 6th, 2013, wherein we addressed the latest workplace trend of employees connecting to their work emails and workstations through personal cell phones, computers and tablets. Bring Your Own Device (BYOD), as it is often called, has many advantages for an employer, but may also be a disadvantage for an employer if there are no guidelines in place for employees. While employers may see increased workflow, faster communications with clients and more engaged employees who use their own personal devices, employers should consider compliance issues and create a policy to guide the use of these personal devices in the workplace - as well as outside of the workplace for work-related purposes - in order to avoid risks associated with security, safety and legal issues.

A main concern with a BYOD policy is overtime considerations for non-exempt employees who use their mobile devices to perform work-related tasks beyond their scheduled work hours. Many times, if emails are sent to an employee's mobile device after work hours, they will likely feel obligated to read the email and respond. Therefore, it is important for an employer to have knowledge of whether the time spent sending and receiving emails from a personal device after hours is considered working time and if a non-exempt employee should be compensated for the time.

The Fair Labor Standards Act (FLSA) states that "non-exempt" employees must receive overtime pay when they work more than 40 hours per week. 29 U.S.C. §207(a). Employers, however, do not have to compensate employees for overtime if that time is "de minimis." 29 C.F.R. §785.47 (2009). The Department of Labor (DOL) definition of "de minimis" time includes "infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded." According to the DOL, the courts have held that such periods of time are "de minimis", or insignificant. In addition, the DOL states that this rule applies only where there are uncertain and indefinite periods of time involved - a few seconds or minutes in duration - and where the failure to count such time is justified by industrial realities. Overall, employers must consider how frequently the activity is performed by the employee and whether the activity is actually part of the work the employee was hired to do.

There are several steps an employer may take to reduce the risks associated with employees utilizing their mobile devices for work related purposes beyond their scheduled work hours. For example, an employer may limit the use of mobile devices for work purposes to exempt employees only. By doing so, an employer will avoid the risks involved with not properly compensating non-exempt employees for work performed beyond their scheduled work hours. Employers may also develop a policy which addresses the issue of receiving, reviewing and responding to emails and/or phone calls outside of work hours for non-exempt employees.

In conclusion, the FLSA is concerned if an employer has non-exempt employees who work more than 40 hours per week, including time spent performing work-related tasks from a mobile device. Consequences associated with violating the FLSA may include payment of unpaid wages, including overtime wages, as well as the possibility of liquidated damages.

Does your company have a BYOD policy to guide your employees in their electronic work? Creative Business Solutions develops BYOD policies (generally incorporated into Employee Handbooks) for their clients and would be pleased to assist you with either preparing a new Employee Handbook or revising and updating your current policies and procedures, particularly with respect to BYOD.

Sources:

"Overtime considerations for non-exempt employee mobile device use", Lexology, September 19, 2014

Department of Labor Website,

http://www.dol.gov/elaws/esa/flsa/hoursworked/screenEE29.asp

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