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Jan 06, 2011

Three New Challenges For HR Professionals

By: Paul Ebeltoft

Those in the trenches of human resource management face new legal issues each day. Here are three that you might look out for in 2011.

1. A dispute caused by use of a mobile device. You have all heard about the problems caused by clandestine cell-phone pictures of co-workers posted to YouTube. This is old news. Have you thought about problems that your company could have if your non-exempt employees are racking up overtime hours using a mobile device to conduct business outside of regular hours? What would you do if you face a claim for two years of overtime pay? Your employee is willing to substantiate the work by sharing outgoing communications. However, the employee also claims overtime at the rate of fifteen to thirty minutes per email or text for hundreds of after-hours communications. How will your company meet record-keeping requirements of the Fair Labor Standards Act if you wish to deny the claim?

2. Another dispute caused by use of a mobile device. Have you thought about liability to your company if one of your employees causes an accident while texting on a PDA? Even if the text itself is not business-related and not on a company-provided PDA, injured plaintiffs argue that misuse of PDAs by employees during their work activities is foreseeable. It is negligent, they argue, for an employer to fail to take steps to prevent PDA use during potentially dangerous work activity, like driving.

3. A social networking issue. One of your workers feels that she is suffering workplace discrimination. She does not tell you. Instead, she voices her views on facebook. You have a policy that prohibits your employees from disparaging the company online. You fire the employee. Are you correct?


Consider taking the action now to reduce the risk.

For #1 require that your non-exempt employees turn in their overtime requests weekly. Require your employee to produce a time log and the incoming communication to show that a customer initiated the text or email. Otherwise, require your employee to substantiate that the off-hours work was done at the employer’s request.

For #2 adopt a company policy banning on-the-job texting when away from one’s desk or immediate work area. Ban texting while driving or operating machinery even if that location is a standard work area. Your employees may violate the policy, but a well-crafted and enforced policy might protect the company if an accident happens.

For #3 create a social media policy that is meaningful to your business. One size-fits-all policies will not work in today’s job environment. Using overly broad terms may bar protected speech. If your workplace is or may be unionized, an overly broad policy may allow a court to void your policy as an infringement of the right to organize. Of course, you may prohibit employees from spreading falsehoods or committing online harassment. You should consider other restrictions too, such as prohibiting use of your company email address as a worker’s login or site contact and prohibiting work-hour postings.

Reprinted with permission from an article submitted for publication in the January 2011 Southwest Area Human Resource Association newsletter.