Many of our employees have smartphones. Do we have to pay them for every time they use it outside of regular working hours?
This is becoming a much bigger issue, as more companies are using smartphones as a tool to improve efficiency, productivity, and accessibility for their employees. When talking about nominal usage outside of regular working hours, i.e., a few minutes a couple of times a week or month, it’s not an issue. However, typically, smartphone usage outside of regular business hours can extend well beyond that. You’ll want to carefully consider who really needs to have a smartphone or similar device for business purposes. If there is not a valid reason, reconsider issuing one to avoid potential problems.
Non-Exempt Employees – yes, you have to pay them for that time. This is probably one of the most common violations that Wage and Hour auditors are finding. To avoid a problem be sure to have a policy in place requiring tracking of smartphone usage, even restricting use outside of regular business hours, and make sure to tie it into to your overtime policy. That being said, remember that managers then cannot email employees during those off times, and expect an immediate response, or even a response first thing in the morning. Be sure to explicitly state this policy and remind your managers.
Exempt Employees – smartphone usage can be less of an issue, however, if the individual is off work or considered on leave, they must be restricted from working. For salary exempt employees, if they work any part of the workweek, they must be paid for the entire week. Some companies make it a policy that employees must relinquish all smart devices (smartphones, laptops, tablets, etc.) when they are going to be off work. This can be especially problematic when an employee is still expected to be available for contact while on FMLA leave. If you are contacting them for work related reasons, it cannot be counted as FMLA leave, and they must be paid for the time.
Strategic HR offers assistance with a variety of Benefits and Compensation needs, including understanding how DOL regulations affect your business and helping craft creative compensation plans. Please visit our Benefits and Compensation page for more information.