Employers considering whether to allow the downloading of work email to employee smartphones and other mobile devices, need to be aware of a few key issues. An employment practice such as this could lead to potential violations of wage and hour law and/or HIPAA compliance issues.
1. Wage & Hour: Generally speaking, you have an obligation to pay your non-exempt employees for all time worked, including time that you ‘knew’ about and time that you ‘should have known’ about. Allowing your hourly staff access to their work email while away from the office could make you responsible for paying them for any time spent reading and responding to email messages. Surprised? Well, you’re not alone.
The Department of Labor is closely monitoring scenarios such as these and asserts that by allowing an employee to download their work email on their phone, you have essentially given up your ability to plead ignorance. So, you need to decide if you want to allow employees to access their work email during off hours or not. If you do then you need to create a mechanism for employees to track and record their time and compensate them accordingly.
If you think this is a this slippery slope then you should implement a very clear policy that prohibits the downloading of work email in the first place and/or limits access and use during non-work hours. You may still be on the hook for compensating employees who violate a policy like this, but you can discipline them for disregarding your work rules, which hopefully prevents it from happening again.
2. HIPAA: Mobile devices like smartphones, laptops and tablets can also create a risk for HIPAA violations for employers working in health-related industries. Electronic files and email communications that contain Protected Health Information (ePHI) must comply with HIPAA Security Rules like authentication, encryption and the security of the Wi-Fi connection – which can be difficult to ensure on personal electronic devices.
After carefully considering the risks outlined above, an employer can make an informed decision regarding the syncing of work email to employee mobile devices. Regardless of what an employer decides, be sure to develop clear protocols that address technology access, use and security expectations and then manage accordingly.
Contributed by Jodi Schafer, SPHR, Owner of Human Resource Management Services, LLC.