Minimizing Unintended Risks From Today's Mobile Workforce

Minimizing Unintended Risks From Today's Mobile Workforce Rayna H. Jones, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, LLC 191 Peachtree Street NE, Suite 4800 Atlanta, GA 30303 404-881-1300 www.ogletreedeakins.com

Portable Devices Are Everywhere

The Dangers of Distracted Driving 25 percent of all crashes in 2008 involved talking on cell phones Similar to the hazard of driving with a blood alcohol level at the legal limit Caused an estimated 200,000 crashes in 2008 Texting drivers are at least 20 times more likely to get into an accident

State Laws Require Hands-Free California Connecticut Delaware Maryland New Jersey New York Oregon Washington Except for Maryland, all laws are primary enforcement -- an officer may cite a driver without any other traffic offense taking place.

State Laws Prohibit DWT Alaska Arkansas California Colorado Connecticut District of Columbia Georgia Illinois Louisiana Maine Maryland Minnesota New Hampshire New Jersey New York North Carolina Oregon Rhode Island Tennessee Utah Virginia Washington Wyoming

Federal Prohibitions on DWT Commercial truck drivers Commercial bus drivers Federal employees

Hands-free Phones Are No Better Four times as likely to have a crash

Distracted Working In California, a texting commuter train engineer missed a stop signal and 25 people died from the resulting collision A similar accident in Massachusetts resulted in 49 MBTA riders being taken to the hospital

What About Lost Productivity? Originally thought $43 billion lost if companies did not allow employees to conduct business on the road But, 2,600 deaths and 570,000 injury-causing accidents far outweigh cost Companies who banned phones (AMEC, Exxon Mobil) found no loss in productivity

Costs to Business of Device Usage Distracted conversations mean bad business decisions Device users easier to manipulate, so compromise negotiations too freely Multitasking decreases work quality

Why Worry? Lawyers argue employers liable via respondeat superior Employers are deep pockets targeted by families of victims Insurance companies are considering cell phone policies in setting premiums

Employer Liability Int l Paper - $5.2 million settlement, on-duty employee accident with company-issued phone Coca-Cola Bottling confidential settlement when driver glanced at his passenger seat computer, swerved and killed Law firm sued for $30 million when associate talking on cell phone with client killed teen. Theory: Because associates job was to amass billable hours via phone, in course of employment. Jury awarded $20 million salesperson crashed using a cell phone

What Are Other Companies Doing? 2010 survey by the Network of Employers for Traffic Safety (NETS) of companies operating vehicle fleets shows that 74% (16 of the 24 companies surveyed) either have policies in place or are planning to implement policies that ban use of all mobile devices while driving company vehicles. Rules apply to both handheld and hands-free devices. Although policies ban all hand-held mobile devices, which would prohibit texting, most companies also have specific language in their policies regarding text messaging. Policy applies whether the employee is using a companyowned vehicle or a personal vehicle for company business.

What Are Other Companies Doing? In a 2009 survey of its members, the National Safety Council (NSC) found that 58% (1,163 out of 2,004 respondents) had a cell phone policy of some kind 469 members completely banned cell phone use while driving Top two reasons given by 99% of companies for ban were employee safety and public safety Most policies are enforced through an honor system, 43% of companies conduct parking lot observations and 40% use driver records and traffic citations

Mobile Device Policy Options Prohibit use while driving (Exxon Mobil) Pros Safest Cons Enforceable? Allow but require use of hands-free equipment Pros generally complies with current state law flexibility Cons may not really be safer Allow but limit time and place of use (i.e., not in bad weather, heavy traffic) Pros most realistic Cons leaves much to judgment of employees

An Effective Policy Written Acknowledgement by employee Employees expected to observe all laws Stop driving, or use hands-free devices Employees certify no violation of policy Monitor device use Disciplinary action for violations Applies in company vehicles, on company devices, for company business wherever

Steps to Take Ensure that supervisors and managers enforce responsible driving practices: Avoid calling or texting employees during times they are known to be driving Do not call employees from mobile devices while driving Promptly terminate calls received from employees who are driving

Security Concerns Accessing company network from unsecure site Loss/theft of portable device and confidential proprietary information it contains Remind employees confidential information policies extend to portable devices Simple way to steal information Put security processes in place to protect information from inadvertent or intentional disclosure

The Wage and Hour Implications of the Use of PDAs

The Blessing and Curse of the PDA PDA and off-site computers increase productivity and offer flexibility but are wage and hour trap Must pay for all time actually worked, including after hours by non-exempt Upsurge in litigation by employees claiming no compensation for time spent reading and responding to email, voicemail, and texts after hours

Is PDA Time Compensable? Is the use of the PDA a necessary and integral part of job? Is the off-duty use regular? Is the off-duty use, in the aggregate, substantial?

Wage and Hour Implications of PDAs Integral and necessary? Yes, if the off-duty use of a PDA is one of the principal activities of the job, i.e., an integral and indispensable part of the job no matter when the work is performed Test: whether the activities are performed as part of the regular work of the employee in the ordinary course of business

Wage and Hour Implications of PDAs Is the off-duty use of PDAs required or allowed by the employer? Not sufficient to assert that off-duty use is not required by the employer If employer knows or has reason to believe that employees are using company-provided PDA s on off-duty time, most likely compensable

Wage and Hour Implications of PDAs Is the off-duty use of PDAs merely de minimus, only a few seconds or minutes of work beyond the scheduled working hours? Factors considered: (a) The amount of daily time spent (b) The practical administrative difficulty of recording time (c) The aggregate amount of compensable time (d) The regularity of the additional work

Avoid Liability Evaluate: do your non-exempts need PDAs to access email, voicemail, or access off site computers? Do not leave messages during non-work hours (including vacation) if employee will see and be tempted to read and respond Even if not required if you know or believe PDAs used off duty, it is allowed

If Access Is A Must, You Need Policy Advise non-exempt employee: Not required to check voicemail and email during non-work hours and should not check Should not check during vacation days If they do, must report that time as hours worked No use of PDAs at lunch for work purposes

The Potential Dangers of Textual Harassment Examples of situations where texting has led to legal disputes: Sexting Tiger Woods Detroit Mayor Kwame Kilpatrick World Wrestling Entertainment employee suing for harassment Central Michigan University women s soccer coach

The Potential Dangers of Textual Harassment The dangers of text messages: - Casual/unprofessional - Quick - Lack voice and facial expressions - More difficult to police

Employee Privacy Issues Privacy of text messages Monitoring of Employee Technology Use GPS Monitoring

Privacy Implications of Text Messages Quon v. City of Ontario (U.S. Supreme Ct. June 17, 2010) Does an employer violate an employee s privacy rights by reviewing texts on employer-issued device?

Privacy Implications of Text Messages PD had official no-privacy policy that employee email was subject to search and superior officer gave oral warning that pager text messages covered also. No violation for reviewing employee s sexually explicit text messages while auditing monthly text character use.

Practical Advice Update your harassment policies Make it clear that no non-work-related communications allowed Ensure that your supervisors are aware of policies Conduct regular harassment training for your employees, including supervisors

Questions?

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