Social Media Employment Law

Brazilians Feeling The Effects Of Social Media

All employers and all employees are feeling the effects of social media on work time.   And not just here in the United States; in countries like Brazil.

Concerned about overwhelmed Brazilians and the potential for continued abuse of out-of-office work requirements, President Dilma Rousseff of the already pro-employee country of Brazil has just signed a law that affirmatively requires employers to pay overtime rates for any after-hours work-related e-mails and phone calls conducted through an employee’s smart phone.  

On the one hand, the new law may further increase costs for employers, as well as the potential for more litigation in that country.   On the other hand, the new law may benefit everyone by making it more likely that expectations are the same on both sides when it comes to this era of technology and social media.   For example, there may now be less confusion over the definition of “working time,” and fewer misunderstandings about whether an employee who is engaging in some work activity through a BlackBerry, iPhone, or other smart phone after hours must be compensated, and must be compensated at a particular premium rate.

Employer Take Away:   What should you as an employer take away from this development?    

Here in the United States, there is still much confusion over rights and obligations when it comes to employees working after work.   But is there really an “after work” anymore?  Employers here continue to grapple with setting appropriate boundaries between work and personal time in this era of mobile work stations and 24/7 communication.   Several companies have even been sued already by employees alleging that they were not properly compensated for smart-phone activities “after work.”

It continues to be about managing the expectations and maintaining control over an increasingly out-of-control era.   Don’t blink, because laws like Brazil’s new regulation may soon come to a theater near you.   In the meantime, your company should consider:

            1.         Do all employees (in particular, all non-exempt employees) get Company-owned smart phones?   Do all employees have access to work e-mails outside of their offices, even through their personal smart phones?   Consider limitations on who gets the BlackBerry, and who has the access, so that you have less to worry about when it comes to out-of-work work by those eligible to receive overtime pay.

            2.         Are all employees authorized to work overtime whenever they want?   Do you have a policy addressing that issue?   Your company may still need to pay for overtime, even if unauthorized, but the right policy will go a long way toward managing expectations, and make it easier to impose other forms of discipline for violators.

            3.         Do your supervisors and managers have the same mindset as HR and your corporate executives, or do supervisors and managers expect employees to respond to after-hours e-mails and phone calls?   Do you have a policy addressing that issue?   Have you trained your supervisors on the appropriate mindset?

            4.         Have you set up appropriate record keeping practices to comply with current legal obligations requiring you to accurately record and maintain records of all employee work time?

In short, do you have the right mindset on these issues?

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