BizLawBuz …. The Power of Know

Increasingly, employers are providing employees with mobile communication devices such as smart phones and laptops. Most employers permit personal use of those devices, yet they tend to lack clear-cut policies to protect themselves from liability stemming from that personal use.

Perhaps the most serious risk to employers is invasion of privacy claims arising out of an employer accessing an employee’s emails or text messages on a company-issued phone or computer. Less serious, but probably more widespread, is the risk for unexpected overtime claims arising out of after-hours use of mobile devices.

Company policies should clearly state that the employer retains ownership of all company-issued devices, and that, in the course of accessing communications as needed for business purposes, personal content may necessarily be viewed.

In addition to establishing that employees should have no expectation of privacy with regard to mobile device content, employer policies should identify and prohibit harmful or illegal activities in order to better protect employers from liability relating to misuse of phones and other devices.

Similarly, well-crafted policies and practices can help an employer avoid unexpected overtime liability. For instance, the business use of mobile devices by nonexempt employees should be restricted wherever possible. Also, nonexempt employees should be required to log and report all work performed on their mobile devices outside of business hours.

Mobile communication devices can be extremely valuable business tools. Well-crafted policies and practices can help to keep them that way!

Lee Flaherty

Many employers hire students as interns during the summer months and are perhaps questioning how those interns should be paid to ensure the employer’s compliance with the Fair Labor Standards Act (FLSA). If your interns are “employees,” FLSA applies, and the interns must be paid at least minimum wage. If the interns can be categorized as a “trainee,” however, they may be exempt from FLSA.

For an intern to qualify as a trainee, the intern’s position must meet the following criteria:

1) The training, even though it includes actual operations at the facilities of the employer, is similar to that which would be given in a vocational school;
2) The training is for the benefit of the trainee;
3) The trainee does not displace regular employees and works under close observation;
4) The employer providing the training derives no immediate advantage from the activities of the trainee, and, on occasion, the employer’s operations may actually be impeded;
5) The trainee is not necessary entitled to a job at the completion of the training period; and
6) The employer and the trainee understand that the trainee is not entitled to wages for the time spent in training.

If interns fail to meet any of the above criteria, they should be paid as employees, with at least minimum wage and overtime compensation when earned. Note that class credit is not considered wages and should not be substituted for wages.

Julie H. Pfitzenmaier