Step away from that BlackBerry (Editor’s notes)

Balancing giving staff smartphones against risks of unpaid overtime
By Todd Humber
|Canadian HR Reporter|Last Updated: 01/26/2012

No matter what you’re doing, it’s impossible to resist that little vibration. Whether you’re at the movies, enjoying dinner with friends or attending your child’s school recital, it’s an irresistible siren call.

It becomes a question of when, not if, you’re going to sneak a quick peek at your smartphone to find out if the vibration means a text from a friend or an email from your boss.

Most people I know who have a company-issued smartphone like it. But there’s no denying the encroachment on personal time. In Canadian HR Reporter, one theme we often touch on is the importance of work-life balance and the many benefits — for employers and employees alike — of time away from the workplace to relax and recharge.

But smartphones have undoubtedly created a 24-7 workplace and a backlash against the blurring of work and personal time is gaining traction around the world. Earlier this month, Brazil passed a law stating employees who answer work-related emails on their phones after hours are entitled to overtime. An email to a worker is on par with an order given directly to the employee, according to the Brazilian law.

And closer to home, in Chicago, Sgt. Jeffrey Allen — a cop — filed a class-action lawsuit last year for unpaid overtime on behalf of the city’s finest who had been issued smartphones.

Canada’s certainly not immune from unpaid overtime lawsuits — just ask the likes of CIBC, Scotiabank and CN Rail.

Stuart Rudner, a partner at Miller Thomson in Toronto, wrote about the risks of BlackBerrys and unpaid overtime on his blog on www.hrreporter.com a couple of weeks ago. He warned about employers handing out BlackBerrys and similar devices “like candy” without thinking about whether employees actually need the device.

“The result is, often, employees feel they are expected to check and respond to emails when off duty. Such time can certainly count as hours of work and, therefore, toward entitlement to overtime pay,” wrote Rudner.

So what’s the solution in a wired world? How can employers balance the benefits of equipping key staff with smartphones against the risk such devices pose when it comes to unpaid overtime?

One idea often bounced around is to only issue devices to managers — who aren’t entitled to overtime in many jurisdictions. But that’s a flawed idea because many key employees in non-management roles benefit from having a smartphone and anyone who reads publications such as Canadian Employment Law Today knows the line between who’s a manager and who’s not can be blurry. Titles are meaningless to courts — it’s the actual work that counts — and many managers spend a good portion of their time doing non-managerial type work.

Plan B might be banning the use of devices after hours. As we reported in 2008, Citizenship and Immigration Canada banned its employees from using BlackBerrys between 7 p.m. and 7 a.m. That’s a good step, but would such a ban pass the scrutiny of a court? What if an urgent email came in from the boss at 7:30 p.m.? The employee would feel compelled to respond, regardless of the policy. And if the worker’s shift ended at 5 p.m., there’s still a solid two-hour window of trouble lurking.

So what’s plan C? Volkswagen may have come up with the best solution. The German automaker blocks emails from company-issued smartphones 30 minutes after their shift ends and only flips the switch back on 30 minutes before their next shift.

But what if you need to reach that key employee in an emergency? No problem. Every smartphone, believe it or not, also doubles as a telephone.

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