In recent years the explosion of smart phones, in particular Blackberry devices, has made it possible for employees to be more productive than ever before. Smart phones have helped lengthen the work day from an extra hour of work each day in 2007 to more than two hours per day in 2009¹. A recent study shows 45% of the U.S. work force now report doing some amount of at-home work, up from 27% in 2006², and 18% indicate they work from home almost every single day³.
In addition to working more hours from home, employees are beginning to combine personal and work communication into one activity. Workers are spending a greater percentage of time checking and receiving personal emails and texts while at work, and 70% of all smart phone users say they check work-related email on the weekends. They also do so while on sick leave and vacation, with 46% of sick employees and 55% of vacationing employees staying connected4. And these numbers don’t even include people who indicate they’re checking media before or after work. So what’s driving this? Seventy percent of smart phone users indicate they believe their employer expects them to read and respond to e-mails while not at work5. Seventy percent! That is a staggering assumption, and these are all staggering statistics, leading to the need to address this rapidly growing area of exposure.
The sporadic way these devices are now being used makes it almost impossible for employers to track hours worked accurately, leaving a gaping compliance issue. Any productive work by the employee counts as hours worked, including hours on smart devices. For instance, let’s say a service request comes in after hours at the dealership and an advisor responds to the customer. Does that count as hours worked? Perhaps one of your sales reps gives his cell number to a customer and answers questions from that customer via text message during his off-hours. Does that count? As you can imagine, the issue becomes a tricky one for dealership management. State and federal agencies are putting an increased amount of pressure on business owners to track time for wage and hour practices, including focusing upon the use of smart phones to perform business work. A wave of wage and hour litigation is coming in the same area.
For example, cases are coming forward where employees assert that they were required to be on call 24/7, and respond to emails whenever they happened to arrive, and therefore all time should count as hours worked. Other cases involve employees alleging that, because they were required to review and respond to emails during their lunch break, the break wasn’t a bona fide lunch period. These claims can create a landmine of headaches for the employer under both federal and state laws.
Let’s say that a non-exempt employee uses his smart phone for work purposes, checking and responding to emails and telephone calls before or after his normal work hours, for a total of 20 minutes a day. Over five days a week, that’s 100 minutes; equaling over 83 hours in a typical year. If the individual’s hourly rate is $20 an hour, that’s about $2,590 in overtime pay (since this work is in addition to his 40 hour week.) If you go back three years (the federal statute of limitations) and then double it for “liquidated damages,” you would be looking at $15,540 for this one employee. Now multiply that by all the employees who may be able to make such a claim. It’s easy to see how a few minutes here and there has the potential to add up to a very large number in terms of liability for an employer.
So how do you protect yourself when it comes to smart phone usage and hours worked? Below are a few ideas:
- Whether an employee is exempt from overtime or not, all time he spends working on behalf of the employer must be counted as “hours worked.” In the case of an overtime exempt employee, this may not result in additional compensation being required, but the time must still be counted.
- The most promising safeguard is simple – maintain an accurate record of employee hours worked. That’s it. It can be in any form and should include all of the time that the employee has worked.
- Regardless of what is used as your primary time-tracking system, keep an alternate timekeeping table where employees can submit hours worked outside of the main system. This can be as simple as requiring the employee to send an e-mail to his manager and the Controller listing the additional time worked as well as the reason for the work.
- Do not provide smart phone devices to non-exempt employees unless you intend to pay them for the additional work. Providing the smart phone will allow the employee to claim that there’s an expectation that they work outside of normal working hours.
- Always include in your written policies that any work being performed and any time spent responding to emails outside of work must first be approved by supervisors and must be reported as “hours worked.”
- Finally, tell non-exempt employees they are not expected to respond to emails outside of work. Or if they are, it should be clearly understood how such work is approved, conducted and reported, and the employer must understand that such work must be paid based on reported hours worked.
Without these basic protections, dealerships can find themselves at the mercy of employees claiming wage and hour violations due to smart phone usage. And since smart phone availability and usage will continue to surge, it will only get more difficult as time goes by to protect yourself from work related usage. Set up your policies and inform your employees now to protect your dealership. You’ll be glad you did.
The information and statistics in this article were largely provided by Chris Hoffman, a partner at labor law firm Fisher & Phillips LLP.
- Research In Motion-2007
2-5 Pew Internet & American Life Project-Survey 2008
