These days, it’s hard to imagine life without some form of mobile communication device attached to our ear, hip, or thumbs.  Blackberries, iPhones, Droids and the like are as much a required fashion accessory as a productivity tool nowadays.  As such, employees have long since abandoned the traditional complaints about being issued employer-required “cell phones.”  The texts, social networking, games and other apps — not to mention the distraction a properly loaded smartphone can provide for a fussy child in the backseat — make the “constant contact” with the office bearable.

However, that “constant contact” can lead to headaches for employers.  A variety of potential liability sources lurk around the corner after employees are issued mobile communication devices.  An easy example is the personal injury lawsuit that often follows when an employee negligently texts or talks on a phone while driving.  Another often overlooked concern, however, can be found in the wage and hour venue.

One of the best aspects of this era of Blackberries and iPhones is the instant communication it provides, allowing simple questions and responses to be dispatched with a few clicks of the thumbs.  But what if the person on the other end of that email, instant message, or text is a non-exempt employee entitled to overtime compensation for any and all hours worked beyond 40, or an exempt employee who otherwise performed no work during the workweek?  In those cases, each short email or text might eventually be costly.

Non-exempt employees who are required to carry a mobile communication device as part of their job duties and who use the device for job-related matters during non-work hours are arguably entitled to compensation for that time.  A City of Chicago police officer recently filed a purported class action lawsuit making that very claim.  Similarly, exempt employees who perform no work during a workweek generally are not entitled to receive pay for that workweek; but if an exempt employee is required to check e-mail during the workweek, that electronic activity might constitute working time, thus entitling the employee to receive his or her salary for the entire week.  Resolving litigation involving wage and hour claims (voluntarily through settlement or involuntarily at the hands of a jury) can be very expensive with liquidated damages and attorney’s fees at stake in addition to any unpaid wages.  Plus, the “paper” trail created through the email or text traffic can make a litigious employee’s claims easy to prove.

What can employers do?  One option includes establishing a policy prohibiting employees from using mobile communication devices for work purposes while off-duty.  (Of course, if an employee violates that policy, the time spent working must be compensated, but the offending employee can be disciplined for violating the policy).  Another (dreaded) option is to recall all those employer-issued fashion accessories – no matter how fussy employees’ children might get.  Regardless, employees’ use of their smartphones for work purposes needs to be on Human Resources’ and Risk Management’s radar.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
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