How to Write a Smart Phone Policy

Mobile phones with internet capability (a.k.a. Smartphones) have become tools of efficiency in the modern workplace. In their most basic form, mobile phones facilitate a wide range of communication between employers, employees and clients. Beyond simply making calls, and sending e-mails and text messages, Smartphones now allow employees to remotely access entire computer networks. With the increased use of Smartphones in the workplace – however beneficial to an employer – companies inevitably assume more risk. Here is a mere sampling of the potential issues to address as you craft or update the Smartphone Policy in your employee handbook.

Smartphones Behind the Wheel: A Recipe for Disaster

Many states have laws that prohibit the use of handheld cell phones while driving, and your company policy should do the same. Whether you have company drivers or just employees who travel occasionally, such a policy may limit company liability in the event of an accident – and it will hopefully dissuade your employees from potentially dangerous situations.

In an effort to quell distracted driving, the Department of Transportation (DOT) issued a final rule in late 2011 prohibiting commercial interstate truck and bus drivers from using handheld mobile devices while driving. Penalties for violations of the rule may include:

  • Federal civil penalties of up to $2,750 for each offense;
  • Disqualification from operating a commercial motor vehicle for multiple offenses;
  • State suspension of driver’s commercial driver’s license after two or more serious traffic violations; and
  • A maximum penalty of $11,000 for commercial truck and bus companies that allow drivers to use such devices while driving.

Currently, handheld mobile phones are permissible only when the driver is parked or in an emergency. Drivers are allowed to use “push-to-talk” mobile communication equipment so long as the driver is able to operate the push-to-talk feature from a normal seated position with the seat belt fastened.

Employers beware! It may not be enough to merely have a Smartphone policy in place.

Recently, a Corpus Christi, Texas, jury awarded $24 million to a victim who was hit by a Coca-Cola truck while the truck driver was chatting on her cell phone. Coca-Cola had a policy requiring drivers to use a hands-free device when using a cell phone while driving company trucks. The victim’s attorneys claim the issue is not the existence of a policy, but its enforcement.

In other words, Coca-Cola did not ensure that their drivers understood the risks associated with using a cell phone while driving. They argued that company-wide training exercises or demonstrations may be necessary to adequately enforce the hands-free device policy.

Privacy Concerns for Mobile Devices: How Smartphones Can Destroy Company Security

Employers should do everything in their power to dispel employees’ expectations of privacy when using company-provided Smartphones. Employers should notify their employees that the company can access electronic communications such as emails, text messages and voicemails for legitimate business reasons. Likewise, employees who use their Smartphones to access email or remote workstations should be required to use a password and, in the event that the phone is lost or stolen, the employee should know to immediately report the missing phone to management. A Smartphone that falls into the wrong hands is a security breach waiting to happen. In fact, many employers choose to prohibit Smartphone use in certain areas of their businesses to prevent confidential or proprietary information from ending up on an employee’s phone.

However, there is a slippery slope employers should beware of when it comes to privacy rights in the world of Smartphones and social media. A growing number of employers are requesting all employees to divulge social media password(s). While these social media profiles undoubtedly offer a wealth of information, it is unclear how the “system” – courts, judges and various government agencies – will respond. In fact, United States Senators Charles Schumer (D-NY) and Richard Blumenthal (D-CT) petitioned both the Equal Employment Opportunity Commission and the Department of Justice to begin investigations into the legality of such actions by employers, and Facebook issued a statement, citing privacy concerns, which warned employers of possible legal action for violating its long-standing policy against sharing passwords.

Meanwhile, the National Labor Relations Board has issued three memorandums and two recent Board decisions discussing how limiting employees’ social media communications could result in unfair labor practice charges. It remains unclear where the line will ultimately be drawn in the battle of public vs. private, but one thing is certain – you probably can’t afford to be made an “example” of because of your overbroad communications policies.

“Textual” Harassment: The New Work Environment

As you craft your Smartphone policy, be sure to emphasize other handbook policies that are affected. For example, the use of Smartphones has provided even more outlets for sexual and other types of harassment. Sending lewd emails, making harassing phone calls and texting inappropriate images are all made easier by the advent the same rules apply regardless of the medium. Harassment is no less harassing or disturbing via Smartphone than face-to-face and, in fact, may be more pervasive.

Likewise, a Smartphone provides access to the Internet and social media outlets, such as Facebook and Twitter. Not only does this compromise productivity, if left unchecked, but your policy should also clearly reference any existing social media, Internet and/or other internet-related policies. Or, if those policies don’t exist, now is the time to craft them!

A well-honed Smartphone policy is your opportunity to provide employees with explicit expectations for Smartphone use in addition to outlining potential misuse. In the ever-widening realm of communications, it is critical that employers and HR professionals stay ahead of the curve and avoid becoming a test case in legal battles that have yet to be fought. Take the time to ensure that your employees understand the nuances of your policies, as well as repercussions for noncompliance – not only by acknowledging the handbook, but also by participating in training demonstrations for proper Smartphone use. Doing so may be the lifeline your company needs to avoid legal pitfalls down the road.