The Tribe Report 10. The Non-Desk Best Practices Issue - Page 23

TRIBE: A LOT OF COMPANIES ARE CONCERNED WITH ISSUES THAT ARISE REGARDING ASKING EMPLOYEES TO WORK OUTSIDE OF THEIR REGULAR WORK HOURS. HOW WOULD YOU ADVISE A CORPORATE CLIENT WITH THOSE CONCERNS? JOHNSON: If you regularly require a non-exempt employee to look at emails for more than a de minimus amount of time, you’re going to have to compensate them. For exempt employees, it’s not really an issue. They aren’t paid overtime, so they can be expected to respond outside their nine-to-five hours. TRIBE: DO COMPANYWIDE INTERNAL COMMUNICATIONS, THINGS LIKE NEWSLETTERS, CULTURE PIECES, MORE ENTERTAINING COMPANY NEWS, FALL UNDER DE MINIMUS COMMUNICATIONS? JOHNSON: I would argue that if employees are required to read it, or feel they are, and it takes more than a de minimus amount of time to read, there would be risk. If they’re not required to read it, employees need to know that. It could really be argued either way. But if you want to be safe when you send that stuff out, make it clear that it’s optional, so employees don’t feel obligated to read it off the clock. TRIBE: HOW COULD YOU COMMUNICATE COMPANYWIDE INTERNAL COMMUNICATIONS TO NONEXEMPT EMPLOYEES ON THEIR MOBILE DEVICES WITH THE LEAST LEGAL RISK? JOHNSON: For the least legal risk, you would say at the beginning, “Don’t read this if you’re not on the clock.” And then I’d advise companies to send those communications only during regular work hours. But even with that sort of proviso, if a non-exempt employee does work more than a de minimus amount of time, she would have to be paid. TRIBE: DO YOU FEEL IT’S A PRIVACY ISSUE TO ASK EMPLOYEES TO SHARE THEIR PERSONAL PHONE NUMBERS WITH THE COMPANY? JOHNSON: Legally speaking, no. The bottom line is you don’t have the right to keep your company from instructing you to use your personal device. But the company also doesn’t have the right to examine that personal device as they would with a company-issued device unless they require employees to consent to such examination. So if they are going to allow employees to access company information from their personal devices, employees need to sign an appropriate waiver. In terms of whether or not an employer can require an employee to provide their personal cell number so the company can reach them, unless you have some sort of work agreement, there’s nothing to prevent the company from requiring you to use your personal device. If the issue is “I don’t want my employer calling me on my personal number,” you don’t really have a right against that. You can opt to not give them the number, but there isn’t a lot of recourse for that, and in an at-will employment state like Georgia, the employer could fire you for refusing to provide the information. As long as a nonexempt employee is being compensated for any work beyond de minimus levels, there isn’t a real issue. TRIBE: DOES AN OPT-IN OR OPT-OUT FEATURE ALLEVIATE ANY OF THESE ISSUES? JOHNSON: It would depend on the communications that the employer wants to send. So if it’s just internal, newsletter type info, the opt-in provision would alleviate the issue of whether it’s “required” or not. If the communications are more than that, such as provision of confidential or proprietary information, there would still be risk and a company would need to obtain a waiver of privacy rights and consent to access all data on the device in order to protect that information. And if reviewing the information takes more than a de minimus amount of time, you would still have the issue of payment for non-exempt workers. It’s important to note that a non-exempt worker must be paid for work that is beyond de minimus time even if that work is not or was not authorized by the employer. The employee can be disciplined for “working off the clock” in violation of a company policy, but must be paid for the work performed. TRIBE: DOES HAVING EMPLOYEES DOWNLOAD AN APP RATHER THAN SHARE THEIR PERSONAL NUMBERS CARRY LESS OF A LEGAL RISK? JOHNSON: Maybe an employee would prefer to just download an app, but for an employer, I’m not sure if that would make much of a difference from a legal perspective. Either way, it’s a risk-benefit analysis. You can save a ton of cost by having employees bring their own devices to work. But on the other hand, you will lose co