Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Yesterday, I had the opportunity to speak to a large group at the Connecticut Community Providers Association in Rocky Hill about social media and compliance issues.

The Connecticut Community Providers Association represents organizations that provide services and supports for children and adults with disabilities and significant challenges including people with substance use disorders, mental illness, developmental and physical disabilities.

It was a very energetic crowd and from the questions that were asked, it is clear that social media has made it to the mainstream.  No longer can companies believe that the firewalls that they have on the workplace computers will keep them "protected" from social media.

Why? In part, due to the influx of smart phones (iPhones, Androids, Blackberrys etc.).  Now, individuals can access Facebook, LinkedIn, Twitter, Foursquare from their phones completely circumventing the work.

The problem is compounded in part because some of these smaller organizations allow (and may encourage) people to buy their own smart phones to use for work-related calls.  This saves the company money, but it also complicates matters because employers feel that they cannot "regulate" someone's personal phone.

There are different ways to tackle this and companies seeking to update their "Acceptable Use" or "Electronic Communications" policies should seek some additional legal guidance. 

One way to address the issue may be that, in exchange for the privilege of allowing an employee to access work computers through their personal smart phone, the employee has to give the company access to the phone as well and be subject to workplace rules.  This can be done through a written consent or notice.

Another issues that may arise is in the course of a lawsuit. Is the content of that personal smart phone subject to discovery rules? And if so, how is the company supposed to get the data?

Using personal smart phones for work may be a cheaper, more efficient way to run the organization, but without thinking through all of the implications and developing a strategy for usage, it may create more headaches for a company in the long-term. 

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The New York Times this week published a series of articles revealing studies that showed that drivers who sent text messages were 23 times more likely to get into a collision.  Even the casual use of cell phones while driving may increase the risk of accidents.

In light of these reports, what -- if anything -- should employers be doing about this? That is the subject of a recent blog post by Russell Cawyer of the Texas Employment Law Update.   He suggests a fairly strict approach:

Given that we live in a world where Darwinian principles don't work quickly enough to thin the herd of those too "distracted" to realize that they should not text message while driving, employers should considering adding specific prohibitions against using laptop computers, personal handheld devices, GPS/navigation devices and text messaging while driving to their vehicle fleet usage policies and other policies that govern employees who may drive as part of their duties and responsibilities....

Employers should ensure that their fleet usage policies are updated to prohibit the types of activities employees may engage in while using company vehicles or on company business and should vigorously enforce those policies. Failure to do so can give rise to potential tort claims when those employees are involved in accidents and there is an indication that the driver was distracted because of cell phone, PDA or other non-driving activity.

It's hard to disagree with such wisdom in the abstract. After all, using a laptop while driving isn't the safest thing.

But the problem with such blanket prohibitions is two fold: First, it treats all smart phone use in the car the same. Obviously, being stopped a traffic light to look down at a BlackBerry or get directions from an iPhone is different than typing out a letter on a laptop.  Talking on a hands-free device on a back road may be different than texting while zooming down the interstate.

But second, employees are under tremendous pressure from work to "stay connected" and to be responsive when out of the office.  While it may have been acceptable to be "out of touch" while in your car 15 years ago, that expectation has changed. And until a corporate culture is revised to make it "acceptable" again to be unreachable while driving a car, the push-and-pull of cell phone use will continue to be an issue.

Each company will need to review their policies and determine what is the appropriate level of risk and tolerance it has. Some companies will continue to ban the practice outright, which has a certain appeal to it. Others, instead of an outright prohibition, may want to focus on a overall safe driving practice, while minimizes telephone calls and suggests that employees use hands free devices. 

In any event, ensure that your company's practices are consistent with state law. Connecticut, for example, has placed certain restrictions on the use of cell phones while driving.  And word is that the U.S. Senate is now considering linking highway funds with an outright ban on texting. Stay tuned.

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I love my Blackberry Bold. And I know many others that praise the virtues of an iPhone or other PDA device.

But recently, questions have been raised about the use of these devices by non-exempt employees -- in other words, those employees who are eligible to receive overtime.  If these employees are reviewing their messages outside of work, do they need to be compensated for that time?

Recently, my colleagues, Joshua A. Hawks-Ladds and Megan M. Youngling prepared an article for the Connecticut Law Tribune supplement on this subject that you can download here. It is worth reading because it discusses an answer to this question.

While the law is still developing here, they conclude that:

[A]fter-hours PDA use increases an employer’s exposure for overtime and record-keeping liabilities, as well as the possibility that nonexempt employees will not be properly compensated for all time actually worked in violation of the FLSA and state wage laws. The practices and policies that many employers currently have in place for after hours work may no longer “fit” today’s PDA environment.

Employers must reexamine their current policies and procedures and revise them to reflect PDA usage. They must also reexamine their employees’ exempt versus nonexempt status. Once appropriate policies governing PDA usage are in place, they must be adequately communicated to employees and then enforced. Policy violators should be subjected to appropriate discipline. Following these steps should limit the risks PDAs pose to employers under the sate and federal wage laws.

As I've said before, there are a lot of issues right now for a human resources department. But ensuring compliance with wage and hour laws should continue to remain a top priority for employers. 

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