Technological advances have allowed employers to use a variety of modern tools, from laptops, digital assistants, mobile devices and smart phones. Employees working with flexibility have started using these tools to increase their accessibility to work, especially when off-site or after work hours.
While there are no set rules for the use of such devices, it's important that employers be proactive in setting up clear policies and communicate expectations regarding the use of mobile devices to help against privacy liability. Policies also need to be in place to limit overtime claims as the use of mobile communication continues to grow.
Guidelines
An established comprehensive communications policy is the first step. The policy should be reviewed frequently and implemented with other human resource guidelines.
For company provided devices, explain that the employer retains ownership and rights of access to all electronic communications, including the ability to access and audit device content for business reasons. This content should include emails, texts, photos and videos - whether business or personal related.
If the employer reimburses the employee for some or all of the electronic device, a similar policy should be established with the right to access content. Be clear and communicate often that the employee should not expect to have any privacy for transmitted information. Include a clause prohibiting harmful activities to shield the employer from liability.
Communicate and outline the consequences of the employee failing to return the company-owned device when employment is terminated.
Overtime
Although most employers have policies to ensure compliance with federal and state laws regarding overtime pay, few policies address the unexpected or unauthorized overtime incurred with electronic devices for non-exempt employees. Small amounts of time spent reading text or email after hours may not be a legitimate overtime claim but if the employee routinely works after hours using the electronic device it leaves the employer open to overtime claims.
To avoid overtime liability some suggestions would be to: 1) restrict use to exempt employees whenever possible, 2) do not allow employees to sync the work email to a private phone or computer without prior approval, 3) instruct employees to log in their time so the employer can verify the work performed and calculate the duration and business necessity of calls or emails.
If you do take these measures, courts tend to leave the majority of the burden in the hands of the employee to establish monetary damage claims.
Bottom line, be proactive in taking measures by adding a policy for electronic devices to avoid liability in the "smart phone age".
