Should non-exempt employees be issued cell phones by their employers?

The short answer for many employers is no.

No is not the only answer but it should be a consideration for managers in evaluating what appears to be a neutral or risk free business decision.  If the Fair Labor Standards Act applies (an open question), non-exempt employees shall be paid for all hours worked regardless of place or time.  Accordingly if your non-exempt workers are working off the clock, they are entitled to pay.  That off the clock work can be via a cell phone, laptop or with pen and paper.  Therefore part of this analysis is technology driven and some is not.

As to technology (cell phones and laptops) the easiest solution is not to issue cell phones and laptops to non-exempt workers.  If your business needs require a non-exempt worker to have a work issued cell phone or laptop, then:

1.  Have an off-the-clock policy which explains that if nonexempt employees do consult their work email or take work-related calls after hours, they must report the time to payroll.

2.  Explain what types of calls and issues are an emergency that can be handled after hours and limit in writing the employees’ need to take any other call or email while not on the clock.

3.  If you want your non-exempt employees to work off the clock, expect to pay overtime for that privilege and do not make your employees reluctant to report time worked.

In addition to the overtime implications of cell phones and laptops, there are concerns with all employees if the cell phone use contributes to a car crash or the laptop is used to sexually harass others.  Technology is a very good thing in the hands of most employees, but for a few, technology is trouble which can create liability for employers.

Recommendation:  Consider the unintended consequences of workplace decisions.  The cell phone may make the non-exempt employee more accessible while off the clock but the unintended consequence is the potential increase in overtime pay and liability.  Human Resources oftentimes will identify these unintended consequences after managers make what appears to be a neutral business decision.  This is another reason HR needs to be part of most employment related decisions early in the process.  HR, when consulted, need not earn the moniker Dr. NO but instead help managers fully appreciate the spectrum of risk and make prudent choices based upon an informed understanding of the issues.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.