HR Tip of the Week

Mobile Devices at Work: Pay, Privacy and Other Concerns

Mobile Devices at Work

Workers increasingly rely on smartphones, tablets, and other mobile devices for both business and personal use. While this technology helps employees stay connected to coworkers, clients, and customers, the use of mobile devices at work can raise compliance concerns for employers.

Below are frequently asked questions addressing mobile devices in the workplace:

Q: If non-exempt employees access work e-mail from their personal mobile devices after they clocked out for the day, do I have to pay them?

A: The federal Fair Labor Standards Act (FLSA) and similar state laws require employers to pay non-exempt employees for all hours worked. Time spent using technology outside of the office to respond to work email, access the company network, or check phone messages is generally considered compensable work time. Keep in mind if an employee incurs expenses while using his or her personal device for work-related purposes, those expenses may be subject to reimbursement.

Q: If non-exempt employees check work e-mail after their shift, how can we track that time?

A: If employees have access to an online timekeeping system, they can login and out when they perform work after hours. If employees can’t use the regular timekeeping system to record after-hours work, instruct employees on how to promptly report these hours. For example, provide them with written timesheets to manually track their time. Regardless of the system used, inform employees that that they are responsible for reporting all time spent working, including time they spend checking work email outside of work hours.

Q: We have a policy that prohibits non-exempt employees from performing any work after they have clocked out. We have an employee who has been performing off-the-clock work using his personal tablet. Do we have to pay him for this time?

A: Yes, the employee must be paid for all time spent working. However, you may subject the employee to disciplinary action for failing to follow company policy, as long as his pay isn’t affected.

Q: Can I prohibit employees from using their personal mobile devices on our premises?

A: It's a best practice to implement reasonable rules for the use of mobile devices in the workplace, considering the safety, productivity, and security issues specific to your business. Many employers permit occasional use at work, provided it doesn’t interfere with the employee’s work, as a complete prohibition can impact morale and may be difficult to enforce. In your policy, communicate clearly the restrictions you have in place and the reasons for them. If use of personal smart phones or tablets violates your policy, or workplace conduct rules, address the violation promptly and consistently.

Q: We’ve discovered that several of our employees are using their personal mobile devices after work to complain about their pay on social media. Can I prohibit these employees from doing so?

A: Under Section 7 of the National Labor Relations Act (NLRA), employees have, among other things, the right to act together to improve wages and working conditions. These protections extend to discussions related to wages, benefits, and other terms and conditions of employment. An employee's use of social media to discuss or protest unfair working conditions, such as unequal pay, would likely be considered protected activity under the Act, and employers cannot prohibit employees from engaging in such activity.

Q: A few of our employees are using company-provided tablets to send personal emails after work. Can we prohibit employees from using our email system for anything other than business purposes?

A: The National Relations Board (NLRB), the agency that enforces the NLRA, recently ruled that blanket policies prohibiting personal use of company email are generally prohibited. According to the NLRB, employees have a right to access their employer’s email system to engage in statutorily protected activities provided that: (1) they do so on non-working time; and (2) the employer has given them access to the email system for other purposes.

Q: An employee complained that a co-worker used his mobile phone to secretly record telephone conversations. Doesn’t this violate privacy laws? Can I prohibit employees from recording conversations in the workplace?

A: Federal and state laws limit what the co-worker can record. Some states require all parties involved in a conversation to consent to the recording, while others require that only one party consent. To institute a policy on recordings in the workplace, consider consulting legal counsel to ensure compliance with applicable federal and state laws. 

Q: An employee showed us inappropriate text messages sent to her by a co-worker after hours from a personal mobile phone. We conducted an investigation and found that the texts violated our company’s anti-harassment policy. Can we discipline the co-worker?

A: In general, employers may enforce anti-harassment policies when violations occur after hours and/or outside the workplace. Review your anti-harassment policy to ensure that it addresses conduct inside as well as outside the office. Additionally, your policy should address prohibited communications via phone, text, email or the Internet.

Q: We are concerned about employees infecting our computer network with viruses from their personal mobile devices. What can we do?

A: In addition to installing adequate software and hardware security, some employers prohibit employees from connecting to the company network via their personal devices. Consider restricting employees from charging personal devices through the computer’s USB port, or from connecting to the company’s Wi-Fi network via personal devices. Additionally, review network logs on a regular basis to determine the devices employees are using to access the network.

Q: I want to have a "bring your own device" (BYOD) policy. What should go in one?

A: BYOD policies outline rules for employees who bring their own mobile devices into the workplace and use them to access company data, such as email. Consider how you will protect sensitive business data, especially when the employee leaves your company or if the device is lost or stolen. Because the employee owns the device, federal and state laws may limit your ability to erase the company data unless you first obtain the employee's written authorization. Remind employees that you own the business data, prohibit employees from sharing confidential, proprietary, or trade secret information, and require employees to keep their devices password-protected. The policy should also address reimbursement for business-related expenses incurred when using personal devices for work-related purposes. Before implementing a BYOD program, consider working with legal counsel to develop a written policy and authorization form(s) in accordance with applicable laws.

Conclusion:

The prevalence of mobile devices has extended the workplace beyond the office. To address the challenges resulting from the increased use of technology, take a proactive approach and adopt policies and practices that comply with federal, state, and local laws.

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