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Employers should also educate employees on the privacy tradeo s associated with BYOD policies and set up clear and reasonable ex- pectations of privacy in their policy.
WAGE AND HOUR ISSUES.
e Fair Labor Standards Act mandates that employers must pay non-exempt employees at least minimum wage for all hours the em- ployee is “su ered or permitted” to work by the employer. If an employee decides to re- spond to their work emails from their mobile device at 11 p.m., this valid work for compen- sation and possible overtime. In Mohammadi v. Nwabuisi, the court found that if employers do not want non-exempt employees working from their phones at night, the duty falls on the employer “to exercise its control and see that the work is not performed if it does not want it to be performed.... e mere prom- ulgation of a rule against such work is not enough.” Mohammadi v. Nwabuisi, SA:12- CV-00042-DAE, 2013 WL 1966746, at *5 (W.D. Tex. May 10, 2013), a ’d in part, rev’d in art and remanded, 605 Fed. App’x 329 (5th Cir. 2015) (quoting 29 C.F.R. § 785.13).
us when implementing a BYOD policy, employers should protect themselves from wage and hour issues by incorporating mea- sures that: (a) require employees to keep re- cord and report all time worked, (b) set clear guidelines for working outside regularly scheduled hours, and (c) guarantee minimum wage compliance by compensating employees for device fees or paying an hourly rate that keeps employees at or above minimum wage a er device expenses and fees.
While the popularity of BYOD policies is growing, no standard policy works for every employer. Nevertheless, an e ective BYOD policy should always include a record of con- sent on behalf of the employee, de nition(s) of permissible use, other IT policies and training, exit procedures, reimbursement, and technical support. While many companies may feel as though they are not ready to allow employees to utilize their own tablets or com- puters for work purposes, employers should recognize many of their employees likely al- ready use their own cell phones and tablets to check their work emails. How much work are they doing on there? Maybe it’s time to ask.
... employers should recognize many
of their employees likely already use their own cell phones and tablets to check their work emails. How much work are they doing on there? Maybe it’s time to ask.”
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