In today’s technology dependent culture, the use of mobile devices without regard to time or place is a growing phenomenon.  Certainly, the digital age has changed the way a large majority of employers conduct business with unmistakable benefits.  However, a savvy employer knows that benefits rarely come without some element of risk, and risk reduction is of paramount importance when it comes to sound business management. Achieving a healthy balance between reaping the benefits of technological advancements while curtailing their use to reduce potential liability is not an easy task, but it is absolutely essential. Preparation is the most prudent course of action for today’s employer.

One of the more hot-button issues affecting society right now, both inside and outside the sphere of employee-employer relations, is the use of mobile devices while driving.  The vast majority of states have enacted laws prohibiting the use of handheld devices while driving.  Numerous studies have confirmed the dangers of distracted driving, and juries have little sympathy for individuals who ignore the warnings.  Yet, people still do it, often within the scope of employment.  Employers beware, if an injury results and it’s determined that your employee was “acting within the scope of his or her employment,” a phrase which has been interpreted broadly, there may be costly consequences.

While having a published cell phone policy may not provide a complete shield for an employer, it can provide a viable defense in certain circumstances. The policy should be in writing and signed by all employees.  It should apply to the use of both personal mobile devices and employer provided or funded mobile devices. It should also be clear that the policy applies regardless of whether the mobile device is used in a personal or company vehicle. Further, the policy needs to explicitly state the behavior that is prohibited, including taking and making calls, texting, e-mailing, surfing the internet, using a cell phone GPS system, etc.

However, creating the policy is only half the battle. A policy, when not enforced, isn’t worth the paper it is written on.  To be truly protected, an employer must not create a culture where employees are rewarded for engaging in activities that violate the policy or find themselves in situations where violating the policy is encouraged.  Employers need to be practical when creating a cell phone policy.  The policy can be tailored to suit the needs of the industry and the employer, so long as it does not violate currently enacted laws.  In New Jersey, the use of hands-free devices is permissible while the use of handheld devices is not.  An employer would need to decide whether the use of hands-free devices is acceptable for its employees.  Of course, a total ban offers the best protection, but ultimately the employer needs to weigh the costs and benefits and decide what suits it best.                                               

The employer also should be careful not to break their own policies. A colleague who sends an e-mail, sends a text, or makes a business-related call to another employee who is out of the office must be mindful that if the employee is driving a vehicle, that communication could place the employee in peril, or at the very least could result in a violation of the cell phone policy.  If communication is necessary, an inquiry regarding the status of the out of office employee should be made (i.e. is he or she driving) before any communication continues.  The consequences can be far reaching. For example, the Superior Court of New Jersey, Appellate Division, has held that texting an individual who is driving, with the knowledge that he or she is driving, could be grounds for imposing liability on both parties. Kubert v. Best, 432 N.J. Super 495 (App. Div 2013).  An employer does not want to find itself in this situation. Making sure all employees are aware of the risks and ensuring them that action will be taken against offenders is the key.

If you do not currently have a cell phone policy, a qualified employment attorney can assist in drafting a policy that meets your needs while at the same time satisfies all local and federal laws.  If you do have a policy, it is recommended that you have it periodically reviewed to ensure that it remains current, both in terms of technological advancements and the changing legal environment surrounding this issue.