by James P. Thomas and Kristin A. LaRosa, Esqs.
For years we have counseled employers to develop and enforce a strict policy prohibiting employees from using cell phones while driving on company business. It’s an effective way to limit employer liability if an employee is involved in a traffic accident during working hours.
But a no-cell-phone policy written five years ago may no longer be sufficient. Blame the rise of smartphones, which now dominate the mobile phone market. Their functions encompass text messaging, email, web browsing, playing music and video, taking pictures and playing games.
That multifunctionality makes it more important than ever to have a mobile phone policy, not only to minimize the risks of talking on a phone while driving, but for a number of other reasons as well.
Accident prevention
Talking on a cell phone while driving isn’t the only risk your policy must address. Text messaging and using other smartphone functions are even more dangerous. In fact, a recent study revealed that a driver texting while operating a vehicle increases the chance of an accident by 23 times! Make sure your policy addresses those smartphone risks, which other hand-held devices also carry.
Smartphone etiquette
How many meetings have you attended in which someone is constantly reaching for a smartphone? That may be acceptable in some settings, but it can be disastrous in others.
Take our profession—a law practice—as an example. It may be acceptable in an internal firm meeting to monitor our smartphones for important messages that require prompt attention. But, if an attorney is preoccupied with a smartphone in a client meeting, that client may quickly become a former client.
Consider a policy that addresses when an employee can and cannot use a smartphone in any work setting, not just when driving.
Record-keeping
Text messaging for business purposes has also grown significantly. While texting may be quick and efficient, one drawback is the inability to “file” the texts. Deleted texts are difficult, and sometimes impossible, to retrieve.
Your smartphone policy should address how a record of text communications will be stored so that, if necessary, the messages can be retrieved. Having such a policy will help refute a false claim that a text had been sent.
No expectation of privacy
A smartphone policy should also state that any communications sent on employer-distributed smartphones (or other electronic devices) are company-owned property, that the employee should have no expectation of privacy with respect to such communications and that they are subject to review by the employer.
Your policy should also emphasize that the employer owns the telephone number. This will minimize invasion-of-privacy claims and prevent a departing employee from later using the number to unfairly solicit your customers.
‘Textual’ harassment
The use of smartphones at work has already bred litigation in response to a new trend: “textual harassment.” For example, in 2010 an intern filed a lawsuit 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. Revise your anti-harassment policies to specify that inappropriate text messages or other inappropriate uses of a smartphone may be considered a form of harassment and will not be tolerated.
Productivity
Surveys have shown that employees typically waste two hours per day at work, excluding their lunch breaks—and that doesn’t include the time they spend on their smartphones.
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, your policy should also state that the use of smartphones is subject to the employer’s social media, Internet and other computer-related policies.
If you do not have such a computer-use policy, give strong consideration to adopting one now.
Although complete insulation from liability can never be guaranteed, a smartphone policy that is well-written and well-enforced will do much to prevent liability in a number of different areas. It can improve employee performance and productivity that could be jeopardized if smartphones are abused.
It is essential, however, to train your employees on your smartphone policy. Indeed, a policy that employees don’t understand or, worse yet, are not aware of, is useless and perhaps unenforceable.
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Authors: James P. Thomas is a partner with Pepper Hamilton LLP and concentrates his practice on labor and employment law. Working in Pepper’s Pittsburgh office, he can be reached at (412) 454-5802 or thomasjp@pepperlaw.com. Kristin A. LaRosa is an associate in the firm’s labor and employment practice and can be reached at (609) 951-4142 or larosak@pepperlaw.com.
