Punishing Wasting Time in the Era of the Apple Watch

March is at a close, and so too is March Madness. March Madness is the NCAA basketball tournament obsessed about and betted on all over the country. It is during this time, with games running from noon until late at night, you can find many people sneaking the games on their smart phones, minimizing the games on their computer screens, taking an extra thirty minutes at lunch to watch the games, or constantly checking each notification buzz on their wrist. This constant barrage of distractions is more apparent in March, but it is an issue throughout the year.

Distraction is a special kind obstacle to attention, and as an employer you need to know what to do with these distractions and the time wasted by employees from these distractions. As an Arkansas employer, how do you discipline an employee who is wasting time at work because of the internet or through an Apple watch or smart phone?

The short answer is that when it comes to an hourly employee who is wasting time at work, a verbal and/or written warning 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), also known as the “wage and hour” law is a federal employment law that sets standards relating to minimum wage, overtime pay, equal pay, recordkeeping, child labor, and even employee absences. The FLSA is extensive and complex and complying with it can test the sanity of even the most experienced managers and supervisors. It also happens to be the most violated federal employment law. The FLSA cannot be overlooked when the subject of disciplining an employee for wasting time comes up, because if you are thinking about docking your employees’ pay as a form of discipline, it cannot run afoul of the FLSA.

Under the FLSA, an employer has to classify the employee appropriately as either exempt or non-exempt. Check back next week for our blog titled How to Analyze an Employee’s Exempt Status, which will describe in detail how to determine the exempt status of an employee. But 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. An employer can deduct from wages from one but not the other.

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 needs to be a clear 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. In terms of an Apple watch and other wearable devices, the policy should state whether it will treat these devices the same as it treats the use of smart phones during the work day.

Wearable devices can be just as distracting as a cell phones or tablets, by sending the wearer constant alerts throughout the entire day. As an employer you should not assume that a policy on smart phones or other devices covers wearables, especially as these wearable devices become more advanced. You cannot discipline an employee for messing around on their Apple watch and wasting several hours during the day without having implemented a policy stating this is unacceptable behavior.

Second, the policy should be consistently enforced, even during special occasions such as March Madness. One of the worst things an employer can do is not enforce the policy the same across the board, which can raise a question of fairness about who is being disciplined and why.

Third, the policy should explain what happens if the employee is 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 stop every employee from 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 10,000-steps goal reached by the employee during the time he or she was supposed to be working.

As stated above, the safest policy would be to give a verbal and/or written warning to the employee when he or she violates the policy and to continue to follow the policy in terms of discipline. If the first violation is a verbal warning, the second a written warning, and so on until suspension or termination, the policy should be followed.

When it comes to wanting to discipline the person by docking his or her pay check, you have to be careful. A salaried worker can spend hours on the internet, and his or her paycheck cannot be docked. If it is docked for this wasted time, you have just made that person an hourly worker, and he or she is now due overtime going back and going forward.

If it is an hourly employee you have to discipline for wasted time, you can deduct from his or her wages, as long as the resulting pay rate does not fall below minimum wage before payroll taxes. While it sounds simple, it is far from being a simple process. The problems with deducting from the employee’s pay occur when the employee is not clearly informed on what behavior is acceptable; when supervisors who show favoritism and do not discipline consistently; when supervisors discipline for the wrong reasons or in an illegal or abusive manner; and/or, when there is no documented or collected evidence of employee behavior issues over a period of time.

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 for violating the policy. As tempting as it is to look the other way during March Madness, employers should remind employees that updates, scores of the games, and status of their brackets can wait until their breaks or when the work day is done.