PDAs: After Hour Use Can Be Costly to Employers
April, 2008
For some employees, a Personal Digital Assistant, such as the BlackBerry® or Palm®, is an indispensable business tool that saves time. A few clicks here, a few scrolls there, and you're on to the next task. Others, however, consider a company-issued PDA to be an electronic leash that tethers them to their job, including after work and weekends. As a result, employers must keep a careful eye on their employees' constant use of PDAs. If left unchecked, employers may suddenly find themselves subject to claims filed by employees for unpaid wages and overtime.
Wage claims by non-exempt employees. Under federal and state laws, employers must pay wages to non-exempt employees for every hour worked, plus overtime if worked. Federal and state labor departments consider all employees to be non-exempt, unless their specific duties and salaries meet the strict requirements for an exemption, such as executive, administrative, professional, computer, and outside sales employees. Consequently, a tech-savvy employer must be careful about non-exempt employees reading and sending work-related e-mails after work hours.
Failure to pay all wages due can lead to wage claims filed by current or former employees. The potential recovery in a wage claim may include an award of penalty wages and attorneys' fees. And in Oregon, claimants may file a separate claim for unpaid overtime wages that can trigger additional penalty wages.
Beyond PDAs. The potential wage liability does not stop with the PDA. Today, employers are increasingly equipping their workforce with other electronic devices or capabilities, such as providing company cell phones, laptops, or remote access software that allows them to access the office computer from their homes. As technology continues to develop and provide employees with the ability to work around the clock, employers need to strictly limit the use of such technology by non-exempt employees.
While these electronic devices may increase productivity, they may also leave electronic records indicating the particular date and time of usage. Consequently, it may be very easy for an employee to prove that he or she actually worked overtime.
What this means for your business. Because only non-exempt employees are entitled to be paid overtime, businesses should first analyze their workforce to determine the proper classification of employees as exempt or non-exempt. It is important to keep in mind that many employers misclassify their employees as exempt due to the mistaken belief that payment of a salary or a fancy job title with the word "manager" means the employee is exempt. As a result, employers should consider having an employment audit of their business to examine the exempt status of their employees.
Additionally, employers should consider restricting the use of PDAs, cell phones, and remote access software by non-exempt employees after work hours. Alternatively, they may want to consider completely disconnecting them from such technologies. Employers should also review their employee handbooks and revise their technology and overtime policies.
Given the sheer amount of work-related e-mails generated every day, night, and weekends, employers are wise to take preventive measures now.
Please contact your Bullivant employment attorney for further information.