A recentstudycalled attention to the underinvestment in technology focused on improving the employee experience for “deskless workers” whose jobs are performed outside an office environment. This includes frontline and field employees in retail, manufacturing, utilities, healthcare, transportation, and other industries. A major finding in this study is the value of using mobile technology to support deskless workers. Tactically this makes complete sense given that deskless workers do not sit in front of computers. But legally it could be problematic given theunique lawsregulating many deskless employees. In essence, the same actions that improve employee experience could also increase company compliance risks.
Most deskless workers in the United States are considered to be “hourly” or “non-exempt” workers. This means they are paid based on time worked and do not meet the US governmentsalaried exemptionrequirements. Hourly employees are subject to arange of federal and state regulationsto ensure they are paid fairly for their time. We are not lawyers and are NOT providing legal advice regarding how to interpret and respond to these regulations. That said, the essence of these laws is if hourly employees spend time on a mobile phone doing work-related activities, then they should be paid for that time. While this may make sense on the surface, it can become complicated when one starts to consider issues related to tracking time spent doing work via a mobile phone while away from the workspace. And how can an employer control wage costs when employees could potentially clock in at anytime from anywhere?
This dilemma places companies on a slippery slope of worker enablement versus compliance risk. Research and commonsense show the benefits of providing deskless workers mobile enabled work solutions. Enabling them to do things like training, answering emails, shift scheduling or benefits enrollment while in the field or outside their scheduled shifts can be enormously convenient for them. After all, this is how most salaried employees work particularly since the rise of hybrid remote work arrangements. Deskless employees benefit from and want access to mobile solutions. But doing the very thing employees may want could create significant legal risks for the employer.
The following are a few ways we have seen companies handles this challenge. Note, we want to re-emphasize that we are not lawyers, andthese are NOT legal recommendations, but rather practical ideas used by other employers. Consult your corporate counsel when deciding what makes sense for your company.
Ensure your timekeeping policy prohibits “off the clock work” and requires employees to report any time spent working even if offsite or outside regular work hours. Non-exempt employees should certify their time records are accurate
Provide deskless employees with company owned mobile devices that they pick up and drop off when they start and finish their shifts.
Link mobile applications to the company time and attendance solutions so employees can only access the applications when they are formally on the clock.
Provide training to employees on when they should and should not use mobile applications. And reinforce this with guidelines and warnings that pop up in the applications themselves.
Monitor application usage and contact employees who appear to be using them at the wrong time or in the wrong way.
These methods may help resolve the apparent conflict between what employees want and what the law requires. At a more general level ensure employees and managers approach this topic with a sense of understanding and mutual support. Managers should be sensitive to protecting the employee’s time by avoiding intrusions outside normal work hours. And employees should be aware of the legal risks the company faces if they spend time on work tasks without receiving compensation regardless of how they may feel about it. Like most aspects of employee experience, the solution is not found by pitting company needs against employee interests. It is found through employees and companies working together to support their complementary goals.