7 Deadly Sins of Mobile Devices in the Workplace. Are You Guilty?

By Rachel V. Barlotta

What was the first thing you did when you woke up this morning? If you checked your smart phone, you are among the majority of Americans who admit to looking at their phone within the first 5 minutes of waking according to Deloitte’s 2016 global mobile consumer survey. Mobile device technology has infiltrated every aspect of our lives from the bedroom to the boardroom. The consequences of mobile technology being ever present at our fingertips is both good and bad for employers. On the one hand, mobile technology allows employees to stay connected and perform work even when away from the office which can lead to enhanced employee engagement and a more satisfied workforce, particularly among younger workers. On the other hand, frequent use of mobile technology can lead to decreased productivity and underreported work hours. What’s an employer to do? Avoid these 7 deadly sins when tackling mobile technology in the workplace.

1. Allowing employees to use mobile technology to work remotely without a policy or procedure in place for reporting time. Non-exempt employees who regularly check or respond to emails away from work must be compensated for their time. Just ask Verizon, T-Mobile and Black & Decker who have been sued for unpaid overtime related to smartphone use. To avoid such claims, employers who do want non-exempt employees to work off-site should not provide mobile devices and should limit remote access to computer and email systems. If the nature of the business necessitates remote access, the employer must have a clear policy and procedure for reporting the time. However, merely having a policy is not sufficient. Employers must train employees on the policy and monitor employees’ remote activity to ensure they are reporting all time worked.

2. Failing to combat smart phone addiction. Sometimes actual work gets in the way of updating Twitter accounts, posting on Instagram, messaging on Facebook, and pinning on Pinterest. If you find work is not getting done and that every time you turn around employees seems to have their smart phone in hand instead of the report you asked for 2 weeks ago, it is time to implement a policy that places reasonable limits on the usage of smart phones in the work place. An outright ban will be almost impossible to police and will likely cause a significant employee backlash. Instead, adopt a policy that allows employees to access their devices on break time or in the case of emergencies. Discipline employees who fail to respect the rules.

3. Turning a blind eye to inappropriate content or usage of mobile technology. In case you were wondering if “sexting” in the workplace is a legitimate concern, please look no further than your local and state politicians. The Equal Employment Opportunity Commission has settled at least 2 cases for more than half a million dollars that were brought against employers based upon sexually explicit text messages sent by supervisors to other employees. The same concern exists with respect to internet usage. Employees who openly access sites on mobile devices in the workplace may create a hostile work environment. Employers cannot ignore this type of conduct merely because the mobile device belongs to the employee or because the conduct in question may have occurred off the company’s premises. A mobile device policy should prohibit employees from using technology (whether employee-owned or company-owned) to share offensive comments or images. Likewise, an employer’s anti-harassment policy should clarify the policy covers an employee’s usage of mobile technology.

4. Ignoring security risks. Every employee who has access to or who can download confidential business information on their mobile device creates a security risk. Mobile devices are subject to malware, phishing scams, and hackers. In addition, a disgruntled employee can take information stored on his or her mobile device, such as client contact lists, pricing information, and other trade secrets, to a new employer who also happens to be a competitor. Employers should take measures to implement data encryption technology, strengthen passwords, and protect access from unauthorized individuals. Mandating that employees utilize certain antivirus and protective software is also important to guard against security risks. With respect to insider espionage, employers should require confidentiality agreements that cover data on mobile devices. Employers may also want to consider technology that allows data to be wiped remotely if an employee fails to return a mobile device or to delete confidential information.

5. Conducting surveillance or accessing personal data without proper notice and consent. While employers should not ignore improper use of mobile technology, they also should not assume they have free rein to spy on their employees’ personal smart phone usage. Common law privacy interests come into play when an employer seeks to access information on an employee’s personal device. In addition, the federal Electronic Communications Privacy Act of 1986 prohibits unauthorized interception of or access to electronic communications, including telephone, email and computer usage. Such concerns are not present when the employee is using a company-owned device. Nevertheless, employers should have policies that notify employees that their emails, text messages, and internet usage on company-owned devices are subject to monitoring.

6. Failing to address safety issues. In 2012, Coca-Cola was held liable for a $24 million judgment in a car wreck case involving a salesperson who was driving a company car while talking on the phone. Coca-Cola had a policy requiring drivers to use a hands-free device. However, the company was still found liable for inadequate training and monitoring. The Coca-Cola case demonstrates not only the need to implement a policy regarding use of smart phones while driving or engaging in other high risk work activities, but to adequately train and monitor your workforce. It may also be worthwhile to invest in technology that disables cell phones in a moving vehicle and returns them to service when the vehicle stops.

7. Encouraging employees to BYOD (bring your own device) without a corresponding policy. A significant number of employers allow or expect employees to use their own mobile devices for work instead of providing a company-issued device. Allowing employees to bring their own devices can lower costs and improve efficiency, but it also creates complicated issues. For example, when an employee separates does the employer have the right to inspect the employee’s device and remove proprietary data? Such circumstances show why employers should have a BYOD policy if they allow employees to use personal devices for work. At a minimum, a BYOD policy should identify which employees are permitted to use their own devices, require employees to agree with the employers’ terms and conditions of usage, explain the employer’s right to access, monitor and delete information from employee-owned devices in appropriate circumstances, and establish requirements and protocol for data protection, such as the mandatory use of passwords and other protective software.

Rachel V. Barlotta, Of Counsel Baker Donelson – Birmingham rbarlotta@bakerdonelson.com www.bakerdonelson.com

Rachel V. Barlotta, Of Counsel
Baker Donelson – Birmingham