Disciplining Inefficiency in the Era of Apple Watch!

By Mary E. Buckley

There are always those highly appealing, flashy distractions to which few employees are immune. These distractions vary among industries but generally may include March Madness and the enviably early “bust” of almost everyone’s bracket, Wimbledon, the Master’s Tournament, the Summer and Winter Olympics (including the dramatic “robbery” of Ryan Lochte), the World Cup, Senate hearings, Royal Weddings, etc…, that seem to transfix, at least the majority of an office. The result of these spellbinding happenings is that employees are watching these things during the workday and it results in paying them for wasting time at work. The constant barrage of distractions may be more acceptable when it is a Royal Wedding or the Senate hearing of a former FBI Director, yet many other distractions and the resulting inefficiencies at work are a problem throughout the year for most workplaces.

Apple Watch and Fitbit Alerts

In addition to the annual sporting events or news spectacles, everyday technology can also cut into worker productivity. Wearable devices present a new challenge and opportunity for wasted time to occur. Take the Apple watch, which gives the wearer a minimum goal to stand one minute every hour. The Apple watch will alert the wearer to get up and move if the person has been sitting too long. The Fitbit gives the wearer a goal to reach 280 steps every hour and, just as with the Apple watch, it will alert the wearer that it is time to get up and earn steps.

While that is generally good for employees’ health, these kinds of notifications/interruptions can distract an employee from his or her work and will likely result in that employee proceeding to get up, walk around, and abandon the pending work project. While the break was initially taken to meet the health goal, it usually turns into a longer stop at the water cooler to talk to others, then finally returning to their desk and taking the time to focus back in on whatever the work was he or she was doing before the device ever vibrated. Regardless – it results in wasted time that can significantly add up over time.

Distraction is a special kind obstacle to attention, and employers need to know how to manage these distractions and the time wasted by employees because of them. Many employers struggle with positive methods of how to discipline an employee who is wasting time at work because of ever-present wearable devices or smart phones. So, what are some possibilities?

The short answer when it comes to an hourly employee who is wasting time at work is to give that person a verbal and/or written warning. This is going to be the safest way to avoid wage and hour violations or other complicated employment law issues that could lead to litigation.

The Fair Labor Standards Act (FLSA) sets standards relating to minimum wage, overtime pay, equal pay, recordkeeping, child labor, deductions from pay, and even employee absences. The FLSA is extensive and complex. Complying with it can test the sanity of even the most experienced HR managers and administrators. It also happens to be one of the most violated of all federal employment laws. The FLSA cannot be overlooked when the subject of how to discipline an employee for wasting time comes up, because docking an employee’s pay as a form of discipline may run afoul of the FLSA’s limitations.

Under the FLSA, an employer has to classify each employee appropriately as either exempt or non-exempt. To determine whether an employee is either exempt or non-exempt would be an HR Pro article in itself. So, for our purposes here, there are non-exempt or hourly employees and then exempt or salaried employees, and how an employer can discipline an employee for wasting time depends on the employee’s status and the written policies contained in an employee handbook.

Before getting into ways that an employee can legally be disciplined for wasting time at work, there are some issues that need to be discussed. First, you cannot discipline an employee for behavior the employee did not know was unacceptable. There should be a clear written policy in place about unacceptable and acceptable use of the internet and electronic devices for personal use during the workday. The policy should include specifics about what is allowed and what use can occur in regards to smart phones, tablets, electronic readers, wearable devices, and more.

Wearable devices can be just as distracting as a cell phones or tablets, and many connect to a smart phone. These wearable devices not only send the wearer constant alerts throughout the entire day, such as incoming texts, emails, tweets, Facebook message, and the like, but these devices also send alerts that specifically encourage the person to get up, leave their desk, and walk around (i.e. an alert to stop work) every hour. Prudent employers should not assume that a policy on smart phones or other devices covers wearables within its scope, especially as these wearable devices become more advanced (Google Glass, for example). Clearly-established expectations with wearable devices should be considered specifically for a workplace rule and then communicated to employees.

Second, the policy should be consistently enforced, regardless of whatever high profile event is going on (such as the office’s fantasy football league draft). One of the worst things an employer can do is not enforce a policy consistently, which can create a question of fairness about who is being disciplined and why, i.e. comparators. This consideration is further complicated if members of any protected class are involved.

Third, the policy should explain what the consequences are for violating the policy. This lets the employee know what kind of discipline he or she can expect for the unacceptable behavior.

Having a clear policy in place will not eradicate employee inefficiency due to wasting time. It is inevitable that some time (or a great deal of time) will be wasted, and the employer will be paying for that Buzzfeed quiz or those 1,000 steps taken to reach that 10,000 step goal when he or she was supposed to be working.

It can certainly be tempting to want to make an example of someone who is excessively wasting time at work, but an unpaid suspension should not be a first step. A discipline process should be followed for each employee and each time. Initially, it will likely be a verbal and/or written warning to the employee when he or she violates the policy, as well as guidance that the employee is to continue to follow the expected standards of conduct. If the first violation is a verbal warning, the second a written warning, and so on until suspension or termination, whatever the discipline policy of the company is, as stated in the handbook, should be consistently followed.

Docking Pay

When it comes to disciplining the person by docking his or her paycheck, an employer has to be careful between exempt and non-exempt employees. Your frustration with Jane, a salaried employee, for her endless internet shopping and reading her co-workers horoscopes out loud, should not been seen through her paycheck. Jane is salaried, and if you try and dock her wages then you may have just violated the FLSA, and she could now be due overtime pay. A salaried, exempt employee can be subjected to an unpaid suspension according to a written policy for violating company policies. What a salaried employee can be disciplined for is limited to behavior violating a company policy, and what Jane did in the above example may very well violate work place rules on interfering with other’s work, poor work performance, loafing on the job, and/or idleness. If there is a written policy in place that allows for unpaid suspension as a disciplinary measure, then Jane can be suspended without pay.

If it is an hourly employee you have to discipline for wasted time, you can deduct from his or her hourly compensation, but only as long as the resulting pay rate does not fall below the highest applicable minimum wage before payroll taxes. While it sounds simple in theory, it is far from being a simple process. The problems with deducting from the employee’s pay are: (1) when the employee is not clearly informed on what behavior is acceptable; (2) when supervisors show favoritism and do not discipline consistently; (3) when supervisors discipline for the wrong reasons or in an illegal or abusive manner; and/or, (4) when there is no documented or collected evidence of employee behavior issues over a period of time. However, just like Jane, an hourly employee can be disciplined with an unpaid suspension.

Conclusion

It is an appealing idea to hit the employee where it hurts—his or her wallet—but the problems that can occur with deducting from an employee’s pay can result in litigation, wage and hour violations, and low employee morale. To avoid such issues, outline acceptable behavior, discipline with verbal or written warnings to begin with, and if the behavior is still persistent, dismiss or suspend the employee without pay (both hourly and salaried) for violating the policy. Consider providing supervisor training on monitoring and enforcing these challenging issues as well. As tempting as it is to look the other way during the World Cup, employers should remind employees that scores of the games, twitter rants, and earning 2,000 steps can wait until their breaks or when the work day is done.

Mary E. Buckley, Associate
Cross, Gunter, Witherspoon & Galchus, P.C.
mbuckley@cgwg.com
www.cgwg.com