After-hours emails, texts could be problematic for employers

Specific policies should clarify employer expectations, conditions
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 03/26/2012

Alan Hall confesses he is “perhaps a worst offender” when it comes to responding to work issues on his BlackBerry after hours. The reverend, who is executive officer of ministry and employment at the United Church of Canada, said it’s often easier to deal with something at 6 a.m. or 11 p.m. instead of waiting to get to the office. That “bleeding” between work and personal life can happen quite easily, especially with a large volunteer base, he said.

“You’re working weekends, you’re working evenings, you’re coming in on holidays to accommodate a volunteer-based advisory group.”

But staff are encouraged to work regular office hours and the organization is increasingly strict about overtime having to be approved in advance, said Hall, who is based in Toronto.

“(This) imposes a rigour, particularly on managers, to ensure that there is not an alternate way to do this and that, when it is necessary, that compensating time or remuneration are appropriately extended,” he said. “We’ve not introduced new policies, we’ve just come back to remind managers of what the policy standards are.”

But the issue of mobile devices and employees working after hours hasn’t been specifically addressed in policies, he said. “It hasn’t been named as a problem.”

However, employers in Brazil may soon be changing their policies. Workers who answer work emails on their smartphones after the end of their shifts can qualify for overtime under a new law approved by President Dilma Rousseff in December 2011, according to media reports. The new legislation states company emails to workers are the same as orders given directly to an employee.

In Canada, legislation covers employees who would be working off the clock, either responding to email or logging in to computer systems from home, said Karla Thorpe, director of leadership and human resources research at the Conference Board of Canada in Ottawa. But employers could do a better job in being more precise with policies around this activity.

“It’s about specifying when employees should be using those types of work tools, the conditions under which they’re also expected to be available to respond on-call and then also putting policies in place around whether employees need to have prior authorization before they’re working overtime hours,” she said.

In theory, it’s not necessary to specifically legislate something such as email but, in practice, many companies say the reason they give people BlackBerrys and iPhones is to keep track of their work or so they can be reached — as a business tool, said George Waggott, a partner in the employment and labour relations group at McMillan in Toronto.

“Many will say it’s an extension of availability… which is different from the doctor or the person who’s more clearly on-call.”

But the challenge for an employer is disproving an employee’s assertion or claim she was working overtime, he said.

“It’s a question of onus and, practically speaking, as long as the employee puts a plausible presentation together to say that they did do the work, (the employer has) to prove that they didn’t,” said McMillan. “Quite often, it will be the employee who keeps a fairly good record of what they will claim to have done with their work and the employer does not have a record.”

Possible solutions

So how should employers respond to the new challenges around technology and overtime? Managers and supervisors can be part of the solution, said Thorpe. If they know or ought to know an employee is working on weekends or in the evenings because they’re seeing them respond to emails, managers should encourage people to report those hours so they’re compensated, she said.

“It is their job, as part of supervising those employees, first of all, to make sure that the work the employees are being assigned can feasibly be accomplished within the workday itself. And if they know it can’t be, to make arrangements for any extra hours that the employee then is expected to be putting in, if compensated appropriately.”

Employers can also request regular reports or records of hours of work to avoid potential pitfalls, said Waggott. So, for example, if an employee is terminated because there’s a lack of work and he then requests compensation for the 10 hours per week he was sending emails — and he says the proof can be found on his BlackBerry and the company server — the company is prepared.

“One way to at least mitigate that is to be asking them to submit or record any hours extra they’re claiming, on a regular basis, like every month,” he said.

In Germany, Volkswagen took another approach by having employees turn off their mobile and remote-access devices after hours. That will become more common, said Thorpe.

“Organizations will realize they won’t be able to keep track or keep a handle on and prevent employees from accessing and using their BlackBerrys. It’s also distinguishing from when they’re using it for personal reasons and when they’re using it for work-related reasons.”

But the issue of work-life balance is part of the challenge, said Waggott.

“In our line of work, I’m seeing that quite a lot. People, for example, have a personal iPad and they log in to the work server to do email — but it’s their device.”

The other issue is around approval, as a lot of companies say no overtime will be paid unless there’s prior approval. An employer can’t successfully defend an employee’s hours-of-work or overtime complaint by saying, “We didn’t ask you to do the work or didn’t approve you to do the work,” said Waggott. The employer has to actually show it directed an employee not to do the work, which is different, he said.

“A lot of companies fall down on that — they either don’t have that approach or they don’t administer that way.”

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