By: Thomas S. Tripodianos Published: April 2014

Personal Smart Phones for Work Email

Question.  Are there any issues with letting my employees use their smart phones to access work email?

Answer. Yes

Technology simultaneously makes life easier and more complicated.

Employers need to pay their non-exempt employees for checking and responding to e-mail (and texting and instant messaging, and also phone calls) during what would normally be the employee’s personal time.

Even if you have not requested the employee to do this if you allow it or if you know or have reason to believe that the employees are continuing to work and the employer is benefiting, proper wages must be paid.  That’s an easier argument to make when the employer is issuing the device or providing access to the employer’s servers and email after-hours.

This applies to all employees who are entitled to receive overtime.  Misclassification of an employee as exempt from overtime is a topic for another day.  Spoiler alert:  Misclassification does not turn out well for the employer.

It’s not enough anymore to simply have a policy that prohibits employees from working extra hours without permission. Be clear with employees that work includes e-mails and phone calls.  Establish clear rules about whether and when employees may work remotely.

The suits don’t just include time spent directly on email it includes booting up and shutting down the computer.  The time quickly adds up.

Aside from the wage issue consider security issues.  Mobile devices sync with your servers.  Emails are stored on them as well. Do any of those files contain sensitive or confidential information?  Do you think you can just remotely wipe the device’s memory if it’s lost or stolen?  Do you think the employee would be a little annoyed if you wipe their personal information as well from the device?  And what about the backups of those files that exist in the cloud or on the employee’s home computer?

These are all issues that the employer needs to speak to his IT consultant and lawyer about to formulate and implement a proper policy.

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