With the advent of smart phones, it seems that we are all in constant contact. The car business is no exception. Dealerships are often in contact with managers and employees on their off hours to cover one subject or another.
There is one problem with this constant contact – employees who use their smart phones on off hours could potentially be entitled to pay for those hours, including time and a half overtime for non-exempt employees. Sound incredible? It is not.
There are presently two cases, one in New York and one in Wisconsin, in which employees are suing for overtime pay for time spent using smart phones outside the workplace. The federal government’s position seems to be that an employee who uses a smart phone for business purposes for more than just an insignificant amount of time outside ordinary working hours is entitled to overtime pay. And for folks like salespeople whose commissions are not sufficient to cover minimum wage times hours worked, this could lead to additional minimum wage obligations. So what does a dealer do?
The most important thing is to have a policy on use of smart phones during off-work hours. We regularly write about the need for a written policy for use of electronic and high-tech devices. The ways these devices can be used are constantly changing, and a dealer’s electronic device policy needs to change constantly to keep up.
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The policy should make clear that employees are not to use personal smart phones for work matters outside their time at the dealership, except for incidental contact.
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For company issued smart phones, provide specific guidelines on their use. For employees who may have issues with overtime or minimum wage, make sure it is clear they are not to use the phones when they are not in the dealership.
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The policy should state specifically that employees who use smart phones during off hours who seek to claim the time for compensation for minimum wage or overtime wage purposes must report that time during a pay period. That will give the dealership the opportunity to manage this problem.
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The policies should be strictly enforced. Employees who claim time for usage should be paid, but they should be counseled about the company’s policy if the extra on-phone time claimed was not approved by the employee’s supervisor.
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This is not a problem for managers and other exempt employees where neither overtime nor minimum wage issues are concerns. They can be exempted from these requirements.
Generally speaking, this problem does not arise for minimal usage outside the workplace such as checking email or messages. However, where there is regular contact between the workplace and the employee, or there is a requirement to be “on call” to handle or advise on deals as an example, the problem can arise. A written policy is the best protection.