Q: Two weeks ago, you discussed the pros and cons of Bring Your Own Device (BYOD), a practice which allows employees to use their personal smartphones for work, as opposed to using a company-provided phone.
However, it seems to me you left out an important legal consideration, which is that if an hourly employee uses their phone for work while they’re off the clock, then they must be paid for that time. Am I right?
A: Absolutely. I’m glad you asked about this. There are actually two important legal considerations. Let’s start with your point first.
In order to comply with federal regulations –commonly known as “Wage and Hour” laws– hourly employees must be compensated for all work, regardless of whether it’s done off the clock or off the premises. So, if an hourly employee is expected to check email after they leave work (or they choose to do this of their own accord), the time spent checking , reading, browsing, responding or forwarding that email, is technically compensable. This means if you’re a manager who text-messages your hourly employees after hours (even if it’s just a quick question), that time is considered compensable. It’s the same as when an hourly employee is having their unpaid lunch in the break room and the manager sticks their head in for a quick question. That’s compensable.
So, if you’re a manager and guilty of this practice, you should stop and re-consider. And if you’re an employee on the receiving end of this practice, consider sharing this column with your manager as they may not be aware.
The second legal consideration when letting employees use their personal phones for work is that it makes the phone potentially subject to “discovery”, in the legal sense. For instance, if the company were involved in litigation that involved the employee’s communication in some way, then it’s very likely that phone records and text records would be “discoverable” and thus subpoenaed. Although this is an unlikely scenario, the employee should know the possibility exists, since their privacy would be shot.
BYOD certainly has many advantages for both the employee and the employer. But like I said two weeks ago, they should both go into the practice with eyes wide open.
©Copyright Eva Del Rio
