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Calling for Enforcement
Cell phones and the workplace, it seems, don't mix. That was the case in the wake of the latest mobile-device-related tragedy. It wasn't the first work-related tragedy and, sadly, it probably won't be the last. The horrible event took place on Sept. 12, when the operator of the Metrolink commuter train ran a red light in Chatsworth, near Los Angeles. Twenty-five people died in the resulting collision with a Union Pacific freight train, and another 135 passengers were injured, 40 of them critically. NTSB officials have said that the accident, called the worst Southern California train wreck in more than 50 years, occurred because the operator, Robert Sanchez (who died in the crash) was using his cell phone to send text messages -- a violation of Metrolink policy. In a much different, though workplace-related cell-phone incident, two employees at the University of New Mexico Hospital recently were fired for using their cell-phone cameras to take photos of patients receiving treatment for injuries and then posting the photos to MySpace, the popular social-networking Web site. News reports said that three to four other hospital employees were disciplined and the investigation was ongoing. The employees were fired because they violated a hospital policy that bans the use of cell phone cameras in patient areas, according to reports. Other patient-privacy incidents involving cell-phone cameras in hospitals have been reported in California, Arizona, South Dakota, and at the Mayo Clinic's Phoenix facility, where a surgeon was fired in December 2007 for snapping pictures via cell phone of a patient's tattooed genitals, and then showing them to colleagues. Apparently, despite employer attention to policies, rules and regulations for several years, cell phones remain an ongoing risk-management scourge for employers, who stand to be on the wrong end of potentially expensive litigation when employees disregard cell-phone-usage policies while on the job. Nancy M. Cooper, an owner and attorney in the Portland, Ore., office of Garvey Schubert Barer, says that such incidents clearly show that, even if employers institute cell/camera-phone-usage bans in the workplace (or while doing work outside of the workplace, say, while driving), enforcement and monitoring must be a critical part of the policy. "As those latest examples show, it's becoming increasingly important for employers to implement effective cell-phone-use policies, both to limit liability and improve safety," Cooper says. "It doesn't matter if a call is being made during regular office hours or not; what matters is that the call [or text messaging] is work related. Employers may be found liable for any damages caused by an employee acting within the scope of his or her employment." What's more, Cooper says, employers could also be found negligent if they fail to provide an adequate policy, proper training or safe equipment to its employees. With the recent increase in state statutes banning or restricting cell-phone use while driving, the potential liability for employers has increased. Cooper cites the following cases as examples of ways employers can be affected by cell phone-related lawsuits. While some of the cases are older, Cooper says she sees increased litigation involving cell phones in her practice. * In 2001, the city of Honolulu agreed to pay $1.5 million to a man who suffered permanent brain damage after being struck by a city employee who was talking on a cell phone at the time of the accident. * A jury ordered an employer to pay more than $20 million when its salesman killed a motorist while using his cell phone between sales appointments. * A large investment firm paid a $500,000 settlement to the family of a motorcyclist killed by one of its employees making a work-related call after hours on his own personal cell phone. * When a lawyer struck and killed a teenage girl while driving home from a work meeting -- allegedly on a cell phone call with a client -- the victim's family filed a $30 million suit against the employer, claiming the law firm was negligent in encouraging employees to use cell phones without providing a safety policy. In October 2004, a Virginia jury awarded $2 million in damages to the family of the young girl. * In a 2006 case --settled in March 2008 -- Debra Ford, a Georgia woman, won a $5.2 million settlement from a paper company whose employee caused an accident while talking on a company cell phone. "While cell phone policies may not completely shield employers from liability, employers should implement a policy or update existing policies in order to minimize the risks of a costly lawsuit," Cooper says, adding that to effectively reduce the risk of liability, such a policy should prohibit any work-related cell phone calls while driving. If the company believes that is unenforceable, the policy should, at the very least, require the use of a hands-free device, she says. The policy should also state that if an employee is in an accident, any costs, fees and fines will be solely the responsibility of the driver. "Employers need a balance of the reactive and the proactive," she says, explaining that a proactive policy would require all employees to pull off the road when conducting a cell-phone call, hands free or not. "Employers also need to keep their policies up to date with technology," she adds. "Texting was not an issue just a few years ago." Andrea Chatfield, an attorney and member of the employment law practice group in the Manchester, N.H., office of McLane Graf Raulerson & Middleton, says some of today's newer camera phones even have a "document copy" setting, for a high-resolution photo. "It is no secret that workers love their electronic gadgets," she says. "And the use of camera phones and other portable devices, with embedded cameras or video capability, in the workplace continues to spread like wildfire." Chatfield's list of workplace camera phone risks include corporate espionage, employee harassment, invasion of privacy and a litany of other offenses that can create liability for employers. "The litigation over these types of problems is costly and time consuming, but can be minimized with proactive workplace policies," she says. While there are no laws that specifically geared to the use of camera phones in the workplace, employers generally have wide latitude on regulating behavior in their own workplaces, she says. "There are a number of ways a company can handle these issues, but basically it comes down to whether or not the use and/or presence of the phones should be banned in all or parts of an employer's place of work," she says. But it need not be an all or nothing proposition, she says, adding that many employers are deciding that the presence or use of camera phones, and other personal cell phones, may be acceptable in some areas, but not in others, such as laboratories, prototype testing areas, R&D facilities, human resources offices, as well as dressing rooms or bathrooms. "If this is the approach an employer decides to take, it should also consider posting the policy or signs in the restricted areas and determine if it needs to provide a method for employees to secure their phones prior to entering restricted areas," she says. In the end, Chatfield says a policy alone cannot physically prevent someone from doing something dumb, but it can decrease the risk by discouraging employees from bringing such devices to work. "The issues connected to these types of devices are getting more intense, more complicated, which is why employers need to stay on top of it," she says. "Policies set the tone, but you have to enforce them. You can't be too draconian, but you must make it clear that this is a place of business, and even something as innocent as taking pictures of co-workers is not the thing to do."
October 9, 2008 Copyright 2008© LRP Publications |
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