With the National Transportation Safety Board urging all 50 states and Washington D.C. to ban the use of all cellphones while driving, including hands-free devices, what implications does this have for employers?
Six Reasons It’s Not Just About Talking Behind the Wheel AnymoreWhen the BlackBerry was introduced in 2002, people began conducting business from anywhere. That led to an increase of lawsuits in which employers incurred significant liability for accidents caused by employees talking on a cell phone while driving. To avoid that liability, employers began implementing and enforcing policies defining when and how employees may use a cell phone for work while they are driving.
Pepper Hamilton LLP labor and employment attorney Robert C. Ludolph notes, “If an employee had a car accident while talking on a cell phone, those policies helped employers establish that they were not vicariously liable, because the employee was not carrying out their job duties by talking on the phone, and/or that the employer wasn’t negligent by permitting their employees to use a cell phone while driving.”
But “smartphones” now dominate the market, and their functions encompass text messaging, e-mail, Internet access, media players, cameras and gaming. Ludolph says, “Smartphones have infiltrated almost every aspect of our lives, including our work lives. So implementing a workplace smartphone policy that goes above and beyond any original policies that covered just phone conversations, is more important now than ever.”
Ludolph recommends the following considerations for employers revising their phone policies or drafting one for the first time:
1. Accident Prevention/Risk Avoidance - If a policy was necessary to minimize employer risks associated with talking on a cell phone while driving, consider that using text messaging and other smartphone functions today is even more dangerous. A recent study by the Virginia Tech Transportation Institute revealed that a driver texting while operating a heavy vehicle increases the chance of an accident by 23 times! If your company doesn’t already address this risk, implement a policy prohibiting the use of smartphones and other hand-held devices while driving.
2. Smartphone Etiquette - How many meetings have you attended in which someone is constantly looking at or reaching for a smartphone? It may be acceptable in an internal firm meeting to monitor smartphone activity for important messages that require prompt attention. “But, if an employee is preoccupied with a smartphone while meeting with a client, the client could be offended – and could decide to become a former client,” Ludolph says. So employers should consider a policy that addresses when an employee can and cannot use a smartphone in any work setting, not just when driving.
3. Record Keeping - While texting for business purposes may be quick and efficient, one drawback is the inability to file or archive the texts. “Deleted texts are difficult, and sometimes impossible, to retrieve. A smartphone policy should address how a record of the text communications will be stored so that, if necessary, the communications can be retrieved,” Ludolph notes. “Such a policy will also assist in refuting a false claim that a text had been sent.”
4. Company Property/No Expectation of Privacy - A smartphone policy should also state that any communications sent on employer-distributed smartphones (or other electronic devices) are company property, that the employee should not expect that those communications are private, and that the communications are subject to review by the employer. The policy should also emphasize that the employer owns the smartphone’s telephone number. This will minimize invasion of privacy claims and prevent a departing employee from later using the number to unfairly solicit the employer’s customers, Ludolph adds.
5. “Textual” Harassment - The use of smartphones at work has already bred litigation in response to a new trend – “textual harassment.” For example, an intern filed a lawsuit in 2010 against her former supervisor claiming he sent texts that created a “raunchy, intimidating and sexualized work environment.” Because of this, a smartphone policy should emphasize that any activity on a smartphone is subject to the company’s anti-harassment policies, including the sexual harassment policy. The anti-harassment policies should also be revised to state that inappropriate text messages or other inappropriate uses of a smartphone may be considered a form of harassment and will not be tolerated.
6. Productivity - Surveys have shown that employees typically waste two hours per day at work, excluding their lunch break – and this does not include time spent on a smartphone. Smartphones now have most of the capabilities of a desktop computer, including the ability to access the Internet. “Thus, in addition to addressing how and when an employee is permitted to use a smartphone, a smartphone policy should also state that the use of smartphones is subject to the employer’s social media, Internet and other computer-related policies,” says Ludolph. “If an employer doesn’t have such policies, it should strongly consider adopting them.”
“Complete insulation from liability can never be guaranteed,” Ludolph says. “But a well-written and well-enforced smartphone policy will do much toward preventing liability in a number of different areas and improving employee performance and productivity that could be jeopardized if smartphones are abused.”
Ludolph concludes that it is essential, however, that employees be trained on the smartphone policy: “Indeed, a policy that employees don’t understand or, worse yet, are not aware of, is useless and perhaps unenforceable.”
Submitted by Megan Hanks, Buchanan Public Relations LLC, www.buchananpr.com
For information, visit www.pepperlaw.com.