What should you consider before providing employees with cell phones, BlackBerries or other electronic devices?

Before handing out cell phones or BlackBerries that can keep employees in continual contact with the workplace, you need to be aware of their potential legal liability. Wireless devices intended to connect employees to the office outside of normal working hours can present potential legal dangers for employers under the provisions of the federal Fair Labor Standards Act (FLSA) and state overtime laws. As a result, determining whether a non-exempt employee is working overtime for which he or she should be compensated can present challenging issues for many employers.

Courts interpreting the FLSA have stated that insubstantial or insignificant periods of time are considered minimal and do not need to be counted as compensable work time. However, the regulations interpreting the FLSA say that working as little as 10 minutes per day should not be considered minimal under the law. Therefore, if a non-exempt employee uses technology such as a cell phone outside of regular work hours and, as a result, works more than 40 hours per week, that work may have to be compensated as overtime.

Organizations are wise to protect against these types of claims by creating and enforcing written policies regarding the use of technology outside of normal work time. These policies should include:

• Limiting the amount of time that non-exempt employees can spend using these devices outside of normal work hours;

• Requiring non-exempt employees to receive permission before using these devices after normal work hours; and

• Requiring non-exempt employees to report all work time outside of normal working hours to ensure payment for work completed.

Source: Pepper Hamilton LLP; www.pepperlaw.com.