As most everyone knows, Bring Your Own Device (BYOD) is an approach wherein organizations allow their employees to use their own smartphones and other devices in lieu of company-provided equipment. It provides convenience to employees interested in not having to carry around duplicate mobile devices.

This policy can make employees happy, but it also presents a number of issues that should be explicitly addressed by employers before they adopt any policy. The biggest issue that companies face revolves around how to secure their data on the phone and protect it from misuse. However, while this is the issue that gets center stage, there are others that are also important. In this blog we address one that rarely seems to come up in the discussion: federal and state wage laws. The reason this isn’t talked about much is that most BYOD policies originate in the IT department where logistics and concerns about data security monopolize attention. BYOD is a Human Resource issue because it can raise legal problems in the handling of exempt and non-exempt employees under the Fair Labor Standards Act (FLSA, 1938). The FLSA creates a framework for paying wages above the law’s definition of a forty hour work week that includes overtime pay for work performed beyond that threshold. Under FLSA two basic classes of workers are defined: those employees who must be paid overtime when working in excess of forty hours (non-exempt employees), and those who are not required to be compensated for work done beyond the 40 hour limit (exempt employees).

The problem FLSA presents is that non-exempt employees must be paid for all work, including any work activity outside regular working hours. An example of the liability that is created for an employer are employees who respond to texts and emails from home outside “office hours.” This is compensable work and needs to be counted under the 40 hour threshold. This presents no problem for an exempt employee but is a very real issue for non-exempt employees. One solution may be to forbid the use of the device for work-related activity outside of specified regular work hours. Another solution is to only permit BYOD solutions to be provided to exempt status employees. That could mean that the use of employer issued devices by non-exempt workers would not be permitted outside of working hours or may need to be stored at the workplace and not taken home. A third solution may be device management technology, often referred to as MDM, which allows the partitioning of work and personal data on individual devices. This technology could be used to limit access to, or use of, work data and applications during certain times. A managed service provider would be an excellent resource for determining MDM as a solution to FLSA issues.

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