Does all this connectivity equal liability?
The issue of liability is very possible. Think about this scenario: You have a non-exempt employee, which is defined by the Fair Labor Standards Act as an employee who must be paid overtime for hours worked over 40 in a work week. This employee answers many emails on her company issued Blackberry over the weekend, even though she is not asked or required to do so. Because PDA’s leave such a detailed paper trail companies can be liable for overtime pay in situations such as these. According to Adele Nicholas in her article Pernicious PDAs, in Inside Counsel, “Over the past year, companies have seen an avalanche of wage-and-hour litigation from workers who claim they are owed back pay for uncompensated overtime.”
In a recent survey of SHRM-Atlanta members, sponsored by SHRM-Atlanta and Intellectual Capital Consulting, Inc, 89% of the respondents said that they DO NOT track cell phone usage during non work hours. 67% of those surveyed stated that they DO NOT pay non-exempt employees for PDA usage for non-work hours.
Companies with similar practices may need to reevaluate both of these policies in light of recent litigation. Prevention is definitely the key in this area of PDA usage.
According to Greg Hare, an employment lawyer with the Ogletree Deakins law firm in Atlanta, “companies should issue handbooks to employees, setting forth the guidelines and rules that employees must follow. For example, the policies should state that all overtime work must be authorized in advance by the employee’s supervisor. Thereafter, if an hourly paid employee presents a time sheet claiming that she worked 3 hours on Saturday (e.g., responding to email messages), the company can issue a warning to her for “working without authorization.” Of course, the company still must pay the employee for all hours worked, but by issuing the disciplinary warning, the company can prevent future instances of paying the employee for unscheduled hours.”
Another area of increasing liability as it related to PDA’s is workers compensation claims. Recently “Blackberry Thumb” has been recognized by the American Physical Therapy Association as an actual painful condition caused by typing repetitively with the thumb which is not typically used for typing.
94% of the SHRM-Atlanta respondents indicated that they had NOT had any workers compensation claims resulting from PDA usage.
Unfortunately, several recent news stories have shown that accidents are commonly caused by drivers who are distracted by their own PDA usage. It’s incredibly common to see drivers pecking away on their Blackberries while driving down the highway. Hare suggests that all companies insert a clause into their employee handbooks stating that phones and other PDA’s may not be operated while driving any company vehicle or operating any piece of equipment. By implementing such a ban, Hare says “the company is likely to accomplish two things: (1) the employees will be less likely to hurt themselves – i.e., reducing workers’ compensation claims; and (2) the employees will be less likely to hurt third parties – i.e., reducing general liability insurance claims.”
In addition to the above topics, a discussion regarding weekend and after hour PDA usage should be included in the company policy as well.
64% of SHRM-Atlanta members surveyed said they do have a policy for “Company-provided cell phone usage.Having a well written policy is a good thing, but making sure everyone is aware and consistently following that policy is left up to our managers and supervisors. HR professionals can assist managers with making sure they are aware and trained on these PDA related issues.
And of course, during orientation, every new employee should sign an acknowledgement form, confirming that she received a copy of the employee handbook and policies, and agreeing to abide by all the company’s rules. Hare stated that in his litigation experience, these signed acknowledgement forms have been a vital piece of evidence, allowing the company to prove conclusively that “the employee knew or should have known what the rules were, and she was properly subject to discipline for failing to follow them.”
This issue effects productivity, costs, and liability all very important ccompenents of HR metrics.