Ask the Experts: Hires, Overtime & Wearable Devices

On Feb 13, 2023

In the latest installment of New Jersey Business Magazine’s Ask the Experts column, HR professionals working with the New Jersey Business & Industry Association respond to executives’ inquiries on three interesting workplace issues:

We recently had an open position that two employees were interested in. We’ve made our selection and our chosen employee accepted the role. How do we tell the other employee they were not selected?

We recommend having a face-to-face conversation with the employee who wasn’t selected to let them know that someone else was selected for the role. If you elaborate on your decision not to select this employee for the position, keep the feedback honest and factual. For example, you could let them know that you went with the candidate whose skills more closely match what you were looking for, specifying what those skills are so that the candidate knows what to work on in the future. Factual, job-related feedback like this helps set up the candidate for future success and encourages them to accept, rather than dispute, the decision. Overall, it creates a better experience for everyone.

Assuming you want to keep this employee, you may want to prepare to have a short conversation about their career trajectory, what they could apply for in the future, or how they can grow their skills. They will be understandably frustrated. The feedback will help to foster a more positive and productive conversation about their next career step with the organization.

Lately, we’ve noticed employees using wearable devices while working. We have a policy that limits personal cell phone use at work. Can we expand that to include wearables like smartwatches?

Yes, you can expand your policy to include wearables or other smart devices that might cause distractions to your employees while they are working. Here are a few things to consider when revising your policies:

Focus your policy on the employee’s actions and not the technology itself.

Address how mobile devices may affect workplace safety, customer service, productivity and security.

Allow devices to be used during break and meal periods. Employees should be allowed to use their devices when they’re not working, as this time must be their own to satisfy wage and hour laws.

Smartwatches have health and fitness features, so there may also be reasonable accommodations implications under the Americans with Disabilities Act (ADA). For example, an employee might use a smartwatch to keep an eye on their heart rate or respiration.

You could opt to allow limited use when employees are working. For example, a non-customer-facing employee may be able to use headphones and their mobile device to listen to music while completing their work.

You should consider whether employees need to be reachable during the day for emergencies.

Can an employee waive overtime pay with a signed letter?

No. An employee can’t waive their right to overtime pay, even if they want to. The federal Fair Labor Standards Act (FLSA) prohibits the waiver of an employee’s rights to overtime pay (and minimum wage) in nearly all circumstances. The only time an employee can be exempt from overtime is when they perform work that qualifies for an exemption under federal (and state) law and meets any other applicable tests or criteria for the exemption. 

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