The release of the BlackBerry took the world by storm back in 2002 — making it even easier to conduct business from just about anywhere — and with it came an increase of lawsuits in which employers incurred significant liability for accidents caused by employees talking on a cell phone while driving. To avoid liability in these situations, employers were encouraged to implement and strictly enforce a policy that defines when and how employees may use a cell phone for work-related purposes while driving (“Lack of a Cell Phone Policy Can Be Costly,” Labor & Employment Law Update, March 2003). In the event of an accident, the policy will assist the employer in establishing that it is not vicariously liable because the employee was not working within the scope of employment while talking on a cell phone and/or that the employer was not negligent by permitting the use of a cell phone while driving.
Since then, there have been drastic changes in cell phones and their uses. “Smartphones” now dominate the market and their functions encompass text messaging, e-mail, Internet access, media players, cameras and gaming. Indeed, smartphones have infiltrated almost every aspect of our lives, including our work lives. Including the following elements in a workplace smartphone policy is more important now than ever, not only to minimize the risks of talking on a phone while driving, but for a number of other reasons as well.
Accident Prevention/Risk Avoidance
If a policy is necessary to minimize employer risks associated with talking on a cell phone while driving, the same holds true to minimize the risk of using text messaging and other smartphone functions, which are even more dangerous. In fact, a recent study 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 have a policy to address this risk, now is the time to implement a policy that prohibits the use of smartphones and other hand-held devices while driving.
How many meetings have you attended in which someone is constantly reaching for a smartphone? While this may be acceptable in certain meetings, 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 smartphone activity 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. Because of this, an employer should consider a policy that addresses when an employee can and cannot use a smartphone in any work setting, not just when driving.
The use of text messaging for business purposes has also grown significantly. While texting for business purposes may be quick and efficient, one drawback is the inability to “file” 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. Such a policy will also assist in refuting a false claim that a text had been sent.
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-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. The policy should also emphasize that the employer is the owner of the 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.
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 include that inappropriate text messages or other inappropriate uses of a smartphone may be considered a form of harassment and will not be tolerated.
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. If an employer does not have such policies, it should strongly consider adopting them.
Although complete insulation from liability can never be guaranteed, a smartphone policy that is well-written and well-enforced 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. 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.
James P. Thomas and Kristin A. LaRosa