Credit unions that don't have sufficient bring your own devicepolicies have put themselves at a high legal risk, according toattorney Michael D. Lozoff, partner at Shutts & Bowen inMiami.

“In general, unfortunately, the technology is still runningahead of the ability of some of these institutions to keep up withpolicies that they should have,” said Lozoff, who chairs the lawfirm's credit union practice group. “We run into all kinds ofquestions that sometimes surprise us to the extent that theinstitutions have not addressed something as basic as BYOD.”

Since the early days of smartphones, there have been new andimproved versions of the handheld devices and tablets enablingemployees to work anytime, anywhere and with anyone.

And while that work flexibility may create a lot of advantagesof organizations, BYOD adoption also has created a lot of legalissues such as overtime reporting, work-related data versuspersonal information, smartphone bill reimbursements ande-discovery for civil and criminal cases.

Courtrooms across the nation have already heard arguments aboutthese issues, and credit unions can learn valuable lessons fromthem and stay out of the courtroom.

In the case of Mohammadi v. Nwabuisi, a court found that anemployer failed to compensate an employee for overtime work on hisBYOD.

“The problems you are going to have with cell phone usage andother BYODs are the same problems that are caused by your mostdiligent (nonexempt) employees,” Norfolk, Va.-based attorney JohnM. Bredehoft said. “They are the ones that check their emails,voicemails, read documents and perform work when they are not inthe office, and technically they are not being compensated forit,”.

While overtime claims generally don't amount a lot of money, theFair Labor Standards Act has a double damages provision. Anovertime claim of $10,000 or $20,000 can easily add up to a$100,000 or $150,000 claim.

“So that is why one of the main things we put in all of our BYODand social media policies is that employees are not authorized todo work outside working hours even if they do get emails,”Bredehoft, a member of the Labor and Employment Law Practice Groupat Kaufman & Canoles, said.

However, in another case, White v. Baptist Memorial Health CareCorp., a court ruled that employers are not responsible forcompensating employees overtime when they fail to follow anemployer's procedures for reporting overtime work.

Lozoff said it's important for credit unions to work into theirpolicies appropriate timekeeping procedures that would enablenon-exempt employees to report overtime worked. The burden is onemployers to keep records of overtime hours worked. If they don't,then the employee's estimated overtime worked is presumed to becorrect.

Read more about BYOD legal risks in the May 6 issue ofCredit Union Times.