March 15, 2014

Six Surprising Ways Smartphones Can Get Your Business in Hot Water

Written By

Jeffrey A. Calabrese
Member, Stoll Keenon Ogden PLLC

by Jeff Calabrese

From the C-suite to the mailroom, smartphones have become a ubiquitous part of our work life. Smartphones (and other mobile devices) are actually fully networked computers with portals to your company’s servers and data, as well as employees’ personal activity. The benefits of these veritable Swiss Army knives of technology are obvious. But there are other, less-appreciated employment risks that businesses should consider.  

On the phone may equal “on the clock.”  
If business needs dictate that “hourly” (i.e., FLSA non-exempt) employees must read and respond to work-related texts and e-mails during off duty hours, the time spent communicating could very likely be “compensable time” for which the employees would be owed hourly (and even overtime) pay. Solution? Limit access to business e-mail accounts for non-exempt employees or create a framework to track and promptly pay employees for off duty smartphone work performed.

Her phone. Company data.
As “Bring Your Own Device” practices gain popularity, blending of business and personal e-mails, photographs, texts and other data can complicate matters in the event a device is lost or damaged or when an employee leaves your business. Your company needs to protect its assets and information without running afoul of federal and state law protecting employee privacy. Consider a clear, concise written authorization form – to be signed by each employee with smartphone access to company information – that establishes your business’s positions on the matter and the procedures it uses to protect its interests.

Fact: All communications are “real time.”
Some people continue to believe that statements made through texts or e-mails are somehow immune to human resources policies and employment law. This is wrong. Be sure your employees understand that all digital communication, including harassment, legally protected whistleblower-type complaints and discussions about intra-company business are treated with the same level of seriousness as their in-person counterparts.    

Safety first.  
If an employee injures someone as a result of using a smartphone while driving or performing some other task requiring their undivided attention, your business could be liable. Don’t wait for an accident to address a risk. Create – and consistently enforce – an employee policy that ensures smartphones are used… well, smartly.

Balance security with common sense.  
Gathering or handling personal or proprietary information requires addressing how that information should be secured from employees and others who are armed with digital recording devices. Be careful, however, not to limit employees’ rights to record other work-related conversations, documents or items that involve terms and conditions of their employment. The National Labor Relations Board recently pursued labor law violations against companies just for adopting smartphone policies that could be used to keep employees from adequately addressing compensation, scheduling and other workplace issues.

Mobile devices, and the content they deliver, can be notoriously addictive – to the detriment of getting actual work accomplished. Studies show that employees spend anywhere from 30-90 minutes each work day texting, checking social media and playing games. Many employees can be trusted to use good judgment, but others may need more restrictive measures (e.g., a policy limiting smartphone use to breaks and meal periods).  Again, be careful not to overreach in ways that limit protected employee discussions on working conditions.

The workplace laws developing around smartphone use and misuse are in constant flux. Relying on sound HR practices is always a good idea, however.  For example, a well-considered policy can go a long way towards setting fair employee expectations and providing notice of potential consequences. Consider using an attorney or advisor who focuses on employment law to review any policies and help with tough calls.

Jeff Calabrese is an attorney at Stoll Keenon Ogden PLLC. He focuses on Labor, Employment, and Employee Benefits matters as well as Privacy & Information Security, with substantial litigation experience  in state and federal courts, representing clients from Fortune 500 retailers to locally owned businesses in labor and employment matters. Contact Jeff at or 502.568.5448. 

Written By