Blog Post: In Trouble For Texting?

Why is a blackberry policy important?  Because if your employees are driving down I-25 and they get into an accident and seriously hurt someone (or themselves) while they are talking and/or texting on a phone that you provided to them, bad things could happen to your company… and your insurance policy… and your legal budget.  Not to mention the injured person.

Any argument that employers did not know about the dangers of texting and driving vanished this summer.  HB09-1094 was signed by the Governor on June 1, 2009.  Entitled “Misuse of a wireless telephone” it provides, in essence, two things:

• People who are 18 or older shall not text while driving; and
• People who are under 18 shall not use a cell phone at all while driving.

The penalties for violating this statute include fines and the confiscation of the cell phone. And if you have employees in different states, beware that some states have much tighter restrictions on use of a cell phone while driving.

When you craft your policy (because, after reading this blog I am sure you will rush right out and work on one), you should consider the following:

• When may an employee use a work-issued cell phone?
• What purposes are permissible?
• What restrictions will you place on use of a cell phone?
• Will you require use of hands-free devices or prohibit talking and driving completely?
• To what uses and when may an employee put his or her own cell phone?
• What will you do to monitor an employee’s use?
• Are there other states' laws you with which you must comply?

Other things to consider in addition to potential liability for injuries is the impact work-issued blackberries and other mobile devices may have on an employee's taxes (under debate by the IRS right now!) and whether an employee's off-hour use of work-issued mobile devices that have Internet/Email functions impact wages and rights and responsibilities under the FLSA.  If an employee accesses his/her email on Sunday, and works for a bit, then the employee likely must be paid for this time.

You also may want to include in your policy a reference to your anti-harassment/discrimination policy, your trade secret policy and your electronic media / social networking policy. 

As with all things, the most difficult thing is getting started.  While policies like these might feel a bit like briar rabbit’s briar patch (the more you try the more stuck you are – the more you draft the more convoluted they become), with time they take shape.  And, given the potential clarity and protection they could lend to your organization, I submit that they are worth the effort.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C.  In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.