Smart phones and tablets are now commonplace on the construction job site.  Are your cell phone policies as outdated as the original the flip phones that you issued to your employees? Do you even have a cell phone policy?

Given the legal risks involved with your superintendents, project managers and other employees, you should be adequately prepared. If you haven’t revisited your cell phone and computer use policies recently—or don’t have any—below are some major issues to consider:

1. Claims, claims, claims.  No longer are construction disputes limited to the written documents between the parties.  More and more litigation (or arbitration) involves discovery of texts, emails and photographs for proving or disproving your claims.  Any written policy should address use of cell phones and tablets with an eye for document preservation.  Are change orders being discussed by text?  What photos of an accident?  And did you think about use of personal email accounts by your project members?  All of these issues need to be addressed.
2. Let’s Talk about Sex(ting). Cell phones cameras, video and audio recorder capabilities, and text functions can be an employer’s worst nightmare when it comes to harassment and discrimination claims. They can be used discretely, anywhere, anytime, and leave an undisputable record. Thus, revise your harassment policies if they do not address electronic devices and activities outside of work, including those on social media.
3. Keep Your Secrets Secret. Cell phones are often used by departing or disgruntled employees to transfer your company’s confidential information. Moreover, lost cell phones can expose your company’s business, customer and employee information to third parties. Make sure you have protocols identifying and protecting confidential information, require the return of an employee’s equipment at the end of his or her employment, and implement internal procedures for locking the employee out of your computer network.
4. The Always Connected Employees. Time spent responding to emails, texting, and handling phone calls outside of normal work hours can be compensable for non-exempt employees. Review your practices and policies to address these issues and, just as importantly, train your employees and supervisors on the best practices.
5. Don’t Text and Drive. Employers can be liable for employee accidents that occur while they are distracted by texting or on the phone. Employees must be prohibited—and disciplined as appropriate—from texting while operating vehicles or using heavy machinery, or engaging in other behavior that would distract their attention. Thus, evaluate your employees’ job responsibilities and address risk areas.
6. Don’t Forget about the NLRB. Did you think the National Labor Relations Board would not have an opinion on cell phones at work? The NLRB seemingly contends that, under many circumstances, non-supervisor employees have a right to use their cell phones at work to record video and take pictures. The NLRB has not drawn clear lines on what is and is not permitted, but review your policies and consult with legal counsel for the best practices.

Ignoring the realities of cell phones in the workplace is no longer an option. All employers must draft policies addressing the varied legal risks and monitor this ever changing legal environment. While this post addresses key issues with cell phones on the project site, employers should consult with legal counsel to determine what practices best fit your workplace and where legal lines can be drawn.

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