These days, it seems as though most every employee needs a cell phone, pager, or PDA. While these devices can be great for productivity, says employment attorney Sarah Weitz, they can also create liability.
Digital devices can pose problems ranging from safety to wage and hour and productivity, says attorney Sarah Weitz, blogging on hreonline.com. Weitz, an associate in the Fort Lauderdale office of the law firm Fisher & Phillips LLP, warns employers to be attuned to the following issues.
Dialing and Driving—the Safety Side
It’s clear that driving while talking on cell phones is dangerous. But it’s also clear, says Weitz, that in many situations, employers may be held liable if the employee has an accident while doing business on the phone. Furthermore, a number of local and state laws regulate or ban the use of cell phones while driving, she notes.
And don’t think that hands-free phones eliminate all the problems. Some studies suggest that those talking on the phone hands-free still suffer from “inattention blindness.”
Of course, cell phones can be a great help for getting information about rescheduled meetings, new customers, or changes in plans, so most employers need to strike a reasonable balance between no use and unlimited use, Weitz advises. But employees should be told to pull off the road to take and make calls.
Wage and Hour Liability
The proliferation of phones and PDAs also brings with it wage and hour liability, Weitz says. As HR managers well know, the federal Fair Labor Standards Act requires employers to pay nonexempt employees for all hours worked. Therefore, if nonexempt employees make employment-related cell phone calls from home during off-duty hours, that time is probably “hours worked” according to the FLSA. And that’s true even if they say, “Oh, I don’t mind making a few calls.”
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By the way, DOL likes to tack a recordkeeping violation onto its wage and hour charges—a real problem, because few employers track the hours people spend on the phone at home. If you have no records, the courts will usually take the employee’s word. Several experts have suggested that you ban unapproved calling and, if calls need to be made, demand a log of who was called, how long the call lasted, and what the legitimate business reason was for the call.
Productivity Comes to a Halt
Text-messaging and personal cell phone calls during work can consume a tremendous amount of employee time. That’s not to say, says Weitz, that employers should put into place draconian measures about phone use, but that they should pay attention and establish policy limitations if necessary.
Security Is Compromised
Security of data is an ever-present problem with portable devices that can easily transport large amounts of data. Additional issues may arise around the picture-taking and sound-recording capabilities of cell phones. Your policies and policing should be managed accordingly, Weitz advises.
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Cell Phone Costs Soar
Finally, another area of concern, also pointed out by BLR’s SmartPolicies on CD, is the substantial waste that may occur when, as commonly happens, employees make their own contracts for cell phones.
For example, employees may order many more minutes than they really need for company business. These extra minutes are then available for personal calls. On a companywide basis, these costs can be staggering.
Most organizations probably need a reasonable and enforceable policy concerning the purchase of cell phones, selecting the carrier, selecting the calling plan, and the use of cell phones for personal calls, says Weitz.
In the next Advisor, we will give you some specific recommendations for cell phone safety policies and present a program that takes care of all your policy writing woes.