Is your business at risk without a cell phone policy?

No Cell Phone Policy = The Potential for a Serious Disaster

“A cell phone policy… Really?”

FACT: Cell phone litigation is one of the newest types of litigation springing up across the country. Anytime there’s an accident or harassment, wage disputes, or other privacy violations, and a cell phone is involved, you can bet a lawsuit isn’t far off.

As a wireless management consultant who has written numerous policies in the past, it always surprises me when companies tell me they don’t have an active and up-to-date policy. Some business owners find that the average attorney price of $2,500 for a company cell phone policy is too high for their budget. Others attempt to write one themselves, which can be a daunting and overwhelming task. Others simply don’t know how vulnerable their business is without one.

Why would you want to create a policy for every employee in your company? Apart from the fact that we live in the most litigious nation in the world, you also need to protect your business in other areas.

Traffic and Safety Laws

Employers who have employees who drive company-owned vehicles in the course of business are at great risk of being held liable if the employee is involved in an accident while using a company mobile phone.

FACT: Employers can incur liability, whether or not the call is personal or business related, if it is made on a company phone.

FACT: Employer liability in cases involving a third party is based on a legal principle called vicarious liability. It states that an employer is liable for damage caused by its employee if that employee, using a company cell phone, was acting within the course and scope of his employment at the time the accident occurred.

FACT: Plaintiffs often claim their employer is directly negligent for their own conduct in encouraging or allowing employees to use mobile devices for business without proper policies and training on those policies.

FACT: It doesn’t matter if the call is made during normal business hours or not; what matters is that the call is somehow related to work and the device they are using belongs to YOU! Employers can be held liable for any damage caused by an employee acting within the scope of their employment. Employers can now be considered negligent if they do not provide a proper policy and proper training.

– Recently, in the state of Virginia, a sales representative who was coming home from work, was talking on her cell phone with a customer. She accidentally hit and killed a teenage girl. The girl’s family filed a $30 million lawsuit against the employer, alleging that the company was negligent in providing cell phones to its employees without providing a cell phone policy or company security policy. The family won that lawsuit.

•In Arkansas, a jury found a logging company liable after one of its employees struck another car, seriously injuring the passenger. At the time of the accident, the employee driving the vehicle was using his cell phone for a business call. This particular case ended up being settled for $16 million. They did not have a cell phone policy.

-The large investment firm of Salomon Smith Barney paid a $500,000 settlement to the family of a motorcyclist killed by one of its employees making an after-hours work-related call on his company cell phone. There is no set policy.

FACT: Employers can be held liable for problems or accidents created by an employee’s use of cell phones while driving if a company provides the phones, or if cell phone use is a required or recommended option as part of your job. job.

IRS Regulations

FACT: IRS guidelines require company-issued cell phones and wireless data devices to be used for business purposes only; otherwise, personal use of these devices must be claimed as a taxable benefit. Your company could be penalized and audited for breaching this rule. The IRS can declare any undocumented use of a cell phone at your business personal and can treat monthly cell phone charges as wages, even if the calls were for business purposes.

FACT: The IRS and state auditors have become very aggressive in their requirements regarding the use of personal cell phones in the workplace. Companies are being audited more frequently and are paying serious penalties and fines for non-compliance as a result. You need to implement a policy to not only guide company employees regarding cell phone use, but also to protect your company from these audits. If you have established policies that your employees have signed, then you are protecting your business.

– A company was audited by the IRS for cell phone compliance and fined more than $19,000 for not having a clear enough policy on employees making personal cell phone calls on company phones and for making calls commercials on their personal phones.

Federal and state wage and labor laws

FACT: Deducting the cost of a wireless device from an employee’s final paycheck violates most state and federal wage laws. Federal and state laws restrict and prohibit an employer from making pay deductions for damaged mobile devices or for failure to return company-issued cell phones or damage to equipment. In most states, if you are found at fault for deducting money from an employee’s paycheck for a lost or damaged phone, and unless your policy is written correctly, you can be sued for triple damages.

the FLSA

FACT: The Fair Labor Standards Act requires non-exempt employees to be paid for all hours worked. If, for example, a non-exempt employee checks work email from her home or receives calls from a customer on her company cell phone, the time should be counted as hours worked.

Monitoring and Follow-up

Do you have your employee’s consent to track the whereabouts of your company’s mobile devices? Without consent, you walk a fine line when it comes to privacy rights. You need a policy that is very clear and specific about tracking the whereabouts of your cell phones so you don’t infringe on anyone’s privacy.

-A Florida Roofing company was sued by an employee when he discovered that his company cell phone was still being tracked after hours without his knowledge. He had visited a friend the night before at a drug rehab center and the next day his employer questioned him about his own drug use. This was considered an invasion of privacy because the company did not have a policy informing the employee that his cell phone could be traced at any time. The employee was awarded $500,000 in a civil lawsuit.

Other issues

FACT: Employers are now facing increasing complaints from employees for health problems allegedly associated with cell phone use. This is happening despite the fact that the science seems inconclusive and contradictory. Workers who use cell phones on the job have now begun filing workers’ compensation claims and laws based on the theory that radio frequency radiation from cell phones can cause various forms of brain cancer or other diseases.

Employers should protect themselves with a policy that informs employees of the potential health risks associated with cell phone use, including suggesting or requiring the use of a hands-free device. The policy should state that employees will not hold their employers responsible for any suspected health problems that may result from the use of a company-provided mobile device is essential.

Privacy Concerns

Are you concerned about privacy? Do you have a policy that addresses the misuse of cell phones at your company? Does it address confidentiality, safety, privacy and bullying? Are you concerned about privileged or confidential material, such as trade secrets or information about your clients? Do you have a policy that includes a provision governing camera phones, which present an increased risk to businesses? Intellectual property, trade secrets, personal customer information or other sensitive data can be easily captured and used with a camera phone.

FACT: It is possible for employees to take pictures of themselves in private areas and file a lawsuit against your company for invasion of privacy or harassment. Do your employees have cell phones with cameras and video capabilities or smartphones with scanners? Do you have a policy covering ownership of images taken with your company-provided mobile devices? Do your employees have broadband or Internet cards? Do you have a policy that prohibits your employees from connecting their personal phones to your computer’s USB ports?

-An employee of a Delaware company decided it would be fun to prank a co-worker and take a picture of him peeing in a urinal. He took the photo with his company cell phone and showed it to others in the office. When that got some laughs, he posted it online. The company is out of business today after losing a $1.4 million dollar lawsuit for negligence. The employee said there was no written policy on cell phone misconduct in the workplace. The judge had no other recourse.

Can you afford to be without a policy?

The answer is no. You can’t afford the risk!

FACT: Having a policy prepared for your business is a small price for a document that could possibly save your business from an expensive lawsuit. It really is a small price to pay for such a powerful defense, should you need it. So why put your business in a vulnerable state by not having one?

Wouldn’t you rather have a signed document on hand when an employee decides to sue you? A signed document that says you’ve given permission for the very thing you’re trying to sue? Sure you would. Without a strong policy in place…you’re an easy target!