A Look at One Potential Hidden Cost of Technology—
Cell phones have changed our daily lives in many ways. No more concerns about not being able to get a message to family members when you will be late. No more exorbitant add-ons to hotel bills because you have to make a long distance call. No more wondering what the cost of a widget is if you have a smart phone. Cell phones have also impacted the work environment.
It almost goes without saying that courts must compensate employees for ALL hours worked according to the Fair Labor Standards Act (FLSA), except for those employees exempt from the FLSA. Almost all court employees are nonexempt, including bailiffs, court reporters, and probation officers. Exempt employees are attorneys, full time managers, and other limited categories. Employers have a legal obligation under FLSA to know when employees are working so the employees are properly paid. It is a duty the employer cannot shift to the employee. This provision of the law has not kept pace with our changing world. With the widespread use of smart phones and cell phones, employees are increasingly “on call” for work all day, every day, with or without the employer’s permission.
What obligation does a Court employer have if a Judge sends out an informational after-hours email to a bailiff regarding the following day’s docket and the bailiff responds with a personal cell phone? What obligation does a Court employer have if a probation officer is in a car crash while checking messages on a smart phone provided by the county?
This article will provide some guidelines for our courts; but this area of the law is in flux and case law has not yet answered these questions.
Courts must compensate nonexempt employees for all time worked. Courts generally do not have to compensate an exempt employee who might answer an email or text message after regular work hours. Here are some factors a court should consider to determine if a nonexempt employee’s use of technology after regular court hours should be compensated:
- court liability is the same whether the smart phone is provided by the employer or obtained by the employee independently;
- it doesn’t matter whether the employer asks the employee to respond after-hours or whether the employee does so voluntarily or even contrary to instructions; and,
- FLSA does not require compensation for de minimis extra work.
There were several federal lawsuits filed in 2009 in which employees have contended their employer violated the FLSA by failing to pay for off-duty emailing and texting. None of these cases has yet resulted in a clear decision as to when such off-duty email and texting is compensable. On legal websites geared to answering employees’ questions about workplace rights, there are frequently questions by employees as to whether they have a right to compensation for answering calls and email after regular work hours. An employer may be blissfully unaware that the employees expect compensation until a lawsuit is filed two years after the employee has left court employment.
To protect the court and the county against lawsuits, court employers should have a written policy concerning employee compensation for after hours’ use of cell phones, smart phones, and the internet. The policy should require nonexempt employees to regularly report all hours worked. If a court becomes aware an employee is working after hours, the court should send a written reminder of court policy and take appropriate action, if the extra work is more than de minimis.
Several federal cases in 2009 held work that takes no more than ten minutes is de minimis and an employer was not required to compensate employees for de minimis work. Therefore, if a judge emails the bailiff at night and asks the bailiff to prepare for a large morning conference, and the bailiff responds “I will,” there is no compensation problem. On the other hand, compensation should be given if an employer demands an employee be ready to respond when off duty, if a particular exchange of communications is extended for more than de minimis time, or if work-related communications occur on a regular basis after working hours.
An employer can reduce risk by issuing smart phones only to exempt employees; by having and enforcing written policies which prohibit nonexempt employees from using smart phones or the internet for work use after hours; and having written policies for employee compensation for use of electronic communications outside of the regular workday.
A court may want to pay additional compensation to some nonexempt employees in order to have access to those employees at all appropriate times. An example might be probation officers who need to receive and respond to emergency information. It is entirely appropriate to give smart phone equipment to such employees and to develop a policy to give adequate compensation for after-hours work.
An employer who provides a cell phone or smart phone to an employee should establish a policy regarding use of the cell phone while driving. Studies have proven there is an increased risk of accidents when a driver uses a cell phone. This use rises to the level of grave danger when a driver is texting. There are no Indiana cases which address the issue of employer liability for an employee’s use of a cell phone while driving. Some jurisdictions have held an employer may be liable is an accident occurred while an employee discussed business on a cell phone.
Each employer will have different comfort levels as to how restrictive the policies should be. Some potential options include:
- Prohibit the use of a phone in the car;
- Allow only hands-free use of a phone;
- Require an employee to stop the car before using a phone;
- Caution an employee against the use of a cell phone in dangerous conditions, such as in heavy traffic or bad weather;
- Have a policy that an employee is acting outside the scope of employment while using a phone while driving; and,
- Requiring an employee to reimburse the employer if the employer is found liable for the employee’s use of the cell phone.
It is important for a court to consider all options in deciding on office policy for cell phone use. The author has developed a template for a cell phone policy which is available to any court or probation office upon request. But keep in mind, a policy only has value when it is reinforced by the actions of the employer.
Personally, I love being able to respond instantly to email requests from my employer and the courts. I like clearing my email box of junk or unnecessary emails before I even arrive at the office, and having a smart phone definitely increases my productivity. Cell phones and smart phones will not go away. The use of smart phones is only going to increase until the next leap in communication devices. If you haven’t done so yet, now is the time to adopt a policy regarding cell phone use.