Be Smart About Smartphones

By Philip Josephson, Founder, Law Office of Philip Josephson

Smartphones make us, and our fellow employees, accessible at nearly all times. We feel as though without this accessibility, business would suffer and absent constant contact, disaster would strike without an ability to react.

So, companies now give out smartphones to all levels of the organization, from executives, to customer service representatives, to sales associates, to information technology staff. This creates the mindset that the company or the customer can reach the employees at all times. But, this also creates potential trouble for the employer under the federal Fair Labor Standards Act.

Normally, salaried employees are exempt from the FLSA, but non-exempt employees are covered by the FLSA and these employees are receiving smartphones from their employers at increasing rates. Therefore, when a non-exempt employee works on their smartphone which causes him or her to exceed 40 hours in a workweek, then that employee may have a claim for overtime pay.

In this industry alone, AT&T Services Inc. employees sued last year claiming that they should have been paid for being on call to handle IT service calls. Also, AT&T Mobility faces a suit from a sales associate who sued for back pay and unpaid overtime spent responding to e-mails after work hours.

The nature of the claims under the FLSA make large corporations vulnerable for attack due to the potential for class-action status. Small and medium business should be careful too as any FLSA claim has the potential to drain a business of time, energy, and cash flow.

Be smart when assigning technology to employees and expecting them to be accessible at all times. If they are always accessible – or made to feel as though they must always be accessible – it can cause more problems down the road, and that is not smart.

Philip Josephson is the founder of the Law Office of Philip Josephson, which focuses on providing general counsel and strategic planning services to business leaders and business owners. As outside counsel to a variety of companies, the law firm is uniquely able to add value at the increasingly crowded and confusing intersection of law, finance, strategy and operations. Josephson earned a bachelor of business administration degree in finance from the University of Miami, a juris doctorate from the University of Miami School of Law, and an master’s degree in business administration from Columbia Business School. He is a member of the Florida Bar, the Arizona Bar and the Federal Communications Bar. He also is a member of the 2009-10 PHONE+/Channel Partners Conference & Expo Advisory Board.