On Cyber Monday, E-Shopping Should Be the Least of Your Online Worries

by Pat DiDomenico on November 25, 2014

On Monday, desk-bound employees will be filling their virtual shopping carts, scooping up $4 birdfeeders and two-for-one video games. In fact, a new CareerBuilder survey says:

  • 47% of U.S. workers plan to shop online at work this holiday season (down from 54% in 2013)
  • If you’re looking to crack down, start at the corner office. Senior-level employees are more likely to use work hours to shop online than professional staff (53% to 46%).
  • 24% of companies have fired someone for non-work related Internet use

These hours of wasted time are a concern, no doubt. But in recent years, technology has flipped the “On” switch to a whole new set of legal problems for employers.

The biggest headache: smartphones. Those ubiquitous devices have triggered lawsuits up and down the employment law aisles, from overtime pay to forklift crashes to stolen company secrets—even textual harassment.  

The lesson: As phones turn smarter, so should your policies and practices. It’s wise to establish a Bring Your Own Device (BYOD) program to avoid legal trouble. Here are four smart steps to take before allowing employees to use smartphones and other devices for work:

1. Avoid overtime lawsuits over “off the clock” work. Wage-related lawsuits by employees have shot up a remarkable 438% since 2000. One main reason: Hourly employees say they aren’t being paid for time spent working remotely on laptops or smartphones. The U.S. Labor Department has even given employees a head-start to their lawsuits by creating a free app that lets employees track their hours worked (and wages owed).

To avoid the legal hassle, many employers limit BYOD programs to exempt, salaried employees. If your hourly employees use their phones for work, make clear exactly what is “work” that they’ll be paid for, require that they get approval for any online overtime, and have them sign an acknowledgement of your policy.

2. Make clear that ‘textual harassment’ is sexual harassment. People often hide behind their digital masks, tapping out words they’d never use with their mouths. But employers can be liable for certain text messages, Facebook posts and emails sent by employees. Make clear in your policy that harassment is unlawful and unacceptable, whether it’s done face-to-face or phone-to-phone. 

3. Get the OK to issue a “kill” command. If an employee’s smartphone is lost or stolen, your organization’s data could be at risk. One safeguard: most phones have a “kill switch” that allows owners to remotely deactivate phones and delete data. Sending a kill command to a person’s device without their prior consent could violate federal law. That’s why it’s wise to obtain employees written consent to send a kill command to any personal device. At the very least, require employees to report the loss or theft of a device that contains company data.

4. Be public about privacy. Examining an employee’s personal device could show the history of websites visited, apps downloaded, personal financial information, contacts and personal communications. Plus, some apps allow precise tracking of employee whereabouts. Your policy should inform employees of the employer’s access, storage and use of private employee data on personal devices.

Editor’s Note: Smartphone and social media policies will be just one of the dozens of employment law puzzles to be solved at our upcoming Labor and Employment Law Advanced Practices (LEAP) conference, to be held April 8-10, 2015 at Bellagio in Las Vegas. Get answers to all your employment law questions from 30 of the nation’s top employment lawyers. Plus, you’ll have a fabulous time with your peers at the legendary Bellagio. Learn more.


Category: HR Soapbox