Employers feel caught between hell and high water when issues come up with the devices used by their workers. If the employee brings his or her own device, the workplace may face concerns with privacy, intellectual property protection and security. When workers use work-issued devices, the employer may be found liable for compensable overtime.
Now, employers can heave a sigh of relief because they won’t be hit with collective action suits at a later date by workers who never claimed overtime pay for their use of the issued devices. However, their liability arises when a worker submits an overtime request regarding the use of the device and gets refused.
In a collective action lawsuit filed under the Fair Labor Standards Act (FLSA) more than five years ago, Chicago police officers claimed that they were not paid overtime for their off-duty use of work-issued Blackberry phones. In a precedent setting ruling, in Allen, et al. v. City of Chicago, the court found in favor of the city!
The court said that the police officers were performing compensable overtime work on their devices while off-duty. The officers were using their Blackberrys to communicate over telephone as well as email in connection with official matters such as police investigations, but they failed to put in overtime requests. According to the court’s ruling, the city failed to prove that there was an “unwritten” policy to deny them compensation for their off-time work using the phone.
The City of Chicago had no “official” policy to deny overtime requests for using work-issued devices nor did they discourage the submission of any reports where they mentioned overtime work. Additionally, there was no record of the city denying any requests from the police officers for overtime pay for the simple reason that there were no such requests received. This also meant that there was no documentary evidence to prove that the supervisors were aware that these workers were putting in overtime work using their Blackberry devices.
So what is considered overtime and what are the FLSA overtime exemptions? The FLSA overtime rules specifies that:
This case once again makes employers aware of the risks with the issue of mobile work devices to hourly and salaried non-exempt employees. Employers need to be aware of the repercussions of asking their workers to carry such gadgets. To mitigate concerns with overtime pay, they need to set the right processes for employees to report overtime, off-duty work and off-duty work when using the mobile devices issued. They must also remember that they should not discourage employees from reporting overtime in any case.
Employers will also need to decide if issuing such devices is warranted, making sure that they’re protecting the interests of the business. For example, is it really essential to increase the worker’s productivity? Does it pose any risk to the business?
If anything, today’s workplaces have advanced far beyond the use of Blackberry phones to tablets, smart watches, activity trackers and wearable cameras. The threats these gadgets and mini-computers pose may go beyond concerns with overtime pay. The rapid development of various apps which provide these gadgets with special capabilities and powers make it even more important for employers to guard against their misuse.
How are you handling off-duty use of work-issued devices? Write in the comments below.
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