Employment NewsFlash, July 2011
E-Mailing After Dark: Eight Steps Toward Managing
Risks Associated with Employee Remote Access
There was a day when only executives or management-level employees used company-provided cell phones, blackberries and other PDAs, allowing them to work remotely both during and after regular business hours. Those times have changed.
Mobile devices now saturate the workplace. Advances in communication technology provide all levels of employees with the capability to work remotely after regular business hours – through company-issued cell phones, PDAs, auto-forwarding of work e-mails to personal mobile devices and remote computer access software. This seismic advance in technology, however, raises a host of employment issues for companies when dealing with employees who are entitled to overtime pay. Defining overtime “work,” tracking hours worked and properly calculating overtime pay certainly has become more challenging.
Employers may be unwittingly exposed to claims for overtime compensation caused by the 24-hour nature of the virtual workplace, despite diligently tracking hours worked during regular business hours. To address the risks of employee remote access, employers should consider taking the following steps.
Determine whether business needs require remote access for all employees, a certain group of employees, or just high-level management employees who also qualify for an exemption from overtime laws. Narrow the group as much as possible and then tailor your policies and actions accordingly.
If all employees do not require 24-hour remote access, consult with IT personnel about the available restrictions on the remote server or e-mail access. For example, all employees subject to overtime laws could be locked out of the remote server during non-business hours.
Ask IT personnel about methods for tracking and archiving the time employees spend working remotely so that, should a claim for overtime compensation be made, records exist for use in any legal defense.
A general “Computer Systems Policy” is no longer enough. Employers also should implement a “Remote Access Policy” based on their particular business needs. The policy should delineate expectations for remote access (e.g., that employees subject to overtime should not check e-mail outside of business hours without prior authorization or a business emergency), require employees to track and timely submit accurate time records for any remote work outside of business hours, address any required security measures, and incorporate anti-harassment and other acceptable use provisions of the employer’s general Computer Systems Policy.
Avoid providing employees subject to overtime pay with employer-issued mobile devices. If the business requires otherwise, issue a clear written directive that such devices are for use during regular business hours only.
Communicate with supervisors about whether assigned tasks may reasonably be completed during business hours. If off-hours work is needed, supervisors should reiterate to employees that any overtime work should be timely reported. Supervisors should also avoid, where feasible, e-mailing, telephoning, or otherwise issuing communications requiring an immediate response during non-business hours to any employee subject to overtime laws. If such communications are necessary, they should either contain a reminder that the employee should timely report the overtime worked or a disclaimer that no response is expected until the next business day.
Prohibit all employees from diverting their work e-mails to their personal mobile devices without obtaining prior approval by their supervisor and oversight by computer personnel. If diversion is allowed, confirm that appropriate mechanisms are in place for ensuring that the e-mails remain secure and may still be tracked and read by the employer if needed.
Review employee classifications periodically to determine whether certain employees are appropriately classified as exempt from overtime requirements under both federal and state law. Job titles and job descriptions alone are insufficient without a thorough analysis of the employee’s actual job duties.
Companies certainly face challenges when balancing customer demands with their overtime pay obligations. Clear written policies and effective employee communication, however, go a long way toward combating the legal risks created by the around-the-clock virtual workplace.
Stradley Ronon's Employment & Labor Practice Group counsels businesses on how to prevent employment-related problems before they arise. At the first sign of a problem, our clients receive practical, step-by-step advice on how to manage the situation. If a dispute erupts, our lawyers render advice at every stage — investigation, negotiation and, if necessary, litigation.
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