Employers: More Employees With Personal Mobile Devices Means More Problems In The Workplace

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Black Friday and Cyber Monday have come and gone.  Shoppers are buying Smartphones, mini iPads, iPhones, Kindle Fires, and other gadgets at a record pace.  But what happens when employees decide to bring these shiny new toys into the workplace to show their friends and coworkers?  Worse, what happens when an employee tries to use these personal devices to perform work or read business email?  What should an employer do, if anything, to prevent workplace issues from arising as employees bring more and more personal social media products into the workplace?  Below are just a few steps employers can take now, and relatively easily, to help avoid some of the pitfalls of the increasing use of mobile and social technology in the workplace.

Create and enforce a policy prohibiting the use of personal devices to conduct business for the company

Employers who allow, or encourage employees to use their personal devices (as opposed to Company-owned and provided devices) for work-related purposes are increasing their risk on many fronts.  First, on a practical level, employers should not want an employee to possess any confidential work-related data or information on their own personal devices.  The reasons are fairly obvious:  (1) sensitive and confidential information should be kept under “lock and key” as much as possible to preserve their confidential nature; (2) client/customer information or embarrassing information, if made public (even inadvertently by a well-intentioned employee (lost device, a friend accessing the device, etc.)), could cost the company clients and revenue; and (3) when the employment relationship ends, the employee can walk away with their personal devices full of potentially embarrassing or confidential email or other data.  (To combat against this third item, employers should also enter into Confidential Information and Non-disclosure Agreements with their employees).  Indeed, Christopher Budd, another Windmill Networking contributor, recently wrote an excellent post on these, and other issues concerning the security risks concerning mobile devices.  (I encourage everyone who owns or uses a mobile device to read his article.)  Of course these types of security risks are not unique to personal mobile devices (as opposed to devices provided/owned by an employer), but the security risks are lower when the employer provides certain employees with devices and puts appropriate limits as to how such devices can be used for business reasons.  The bottom line, however, is that employers will not have much control over how an employee uses a mobile device in the workplace.  An employer, however, should make it clear that such personal devices should not be used to conduct business for the company, and a violation of this policy could result in employee discipline.

Don’t prohibit the use of social media devices while an employee is “on company time”

This next issue is not quite as obvious.  Let’s say your company has a policy prohibiting employees from using social media “on company time.”  Seems fair, right?  I mean, if your job has nothing to do with the use of social media, your employer should be able to prohibit you from using social media when you are “on company time.”  After all, you are “on company time,” so you should be working, not updating your Facebook status, and not using Facetime to video chat with a friend.  Well, the National Labor Relations Board (“NLRB”) (yes, them again) has a different viewpoint.  An administrative law judge (“ALJ”) recently determined that a social media policy prohibiting employees from using social media on company time was invalid.  This is so because the NLRB argued that “company time” is ambiguous and could actually include non-work times (like rest and meal breaks, for example).  And, thus, the employer’s policy had a chilling effect on its employees’ ability to exercise their rights under Section 7 of the National Labor Relations Act (“NLRA”).  Even though the employer argued that it faced a significant problems with employees using social media for personal reasons at work, ultimately the ALJ sided with the NLRB.  Here is the full decision of the NLRB ALJ in this EchoStar Technologies, LLC case.  (For more background on the NLRB and Section 7 of the National Labor Relations Act, please see my prior posts including one titled: Employers:  New California Law and New NLRB Decision On Social Media).

To avoid falling in the same trap that EchoStar did, employers should prohibit employee use of social media during “work time” rather than the phrase “company time” found ambiguous by the NLRB and ALJ.  In fact, in one of my prior posts (link provided above) I wrote about the NLRB’s Acting General Counsel’s “Operations Management Memos” regarding his position on social media in the workplace.  In the Acting General Counsel’s third Memo on social media policies, dated May 30, 2012, he found portions of six employer’s social media policies to be lawful, and found Wal-Mart’s entire policy lawful as well.  Significantly, Wal-Mart’s policy used the phrase “work time” in limiting employee use of social media.  Thus, the real take-away is that employers must carefully wordsmith their policies and if any word or phrase is ambiguous or could be interpreted to chill an employee’s Section 7 (or other rights), then the NLRB is likely to argue that the policy is unlawful.

Proactively head-off wage and hour issues

Many employees check email, or conduct business after normal work hours.  If such employees are considered “exempt” then the employer need not worry about overtime and other wage and hour issues.  However, if the employee is “non-exempt” (entitled to overtime, meal and rest breaks, and other protections), then the employer must take steps to discourage non-exempt employees from using any device to check email or work beyond their normal shift, and pay the non-exempt employee for the after-hours work.  Otherwise, the employer could be liable for overtime and other wage and hour issues.  Employees who conduct business on their own devices are more likely to also check those devices for work-related purposes while at home, at a child’s swim meet, or other “off the clock” time.  As a result, employers should promulgate and enforce policies to prohibit employees from doing so, and by stating that such off-the-clock work could result in disciplinary action.  Even if the employer disciplines the over-eager employee, that non-exempt employee is still entitled to the earned overtime, and such added expenses can pile up quickly for an employer.  But with a clear and carefully worded policy, employers can discipline employees for such unauthorized after-hours work.

Another social media “gift” in this area comes in the form of a smartphone application developed by the U.S. Department of Labor (“DOL”) to help employees track the hours they work and the wages owed to them.  Of course, employers can and should require employees to use employer-promulgated methods to track work time.  But with this new DOL “app” (currently, only available for the iPhone), a whole new can of worms has just been opened.  The DOL’s app only calculates overtime based on federal rules, and does not take into account any varying state overtime laws (like those in California, for example).  Thus, it may have limited use in some states, but it is the start of a new trend.

Some holiday work for employers

Smartphones, tablets, and apps are here to stay and will permeate the workplace more and more.  Employers should take the time to consult with an experienced employment law attorney to develop policies and procedures to deal with social media in the workplace, including ones dealing with employees bringing personal devices into the workplace, confidentiality/privacy, wage and hour concerns, and limits on the use of social media.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
James Wu

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