Is Your Company At Risk Without A Cell Phone Policy?

No Cell Phone Policy = The Potential For Serious Disaster

“A Cell Phone Policy…Really?”

FACT: Cell phone litigation is one of the newest types of litigation springing up all around the country. Whenever there is an accident or harassment, wage disputes, or other privacy violations, and a cell phone is involved you can bet a law suit may not be far away.

As a Wireless Management Consultant who has written numerous policies in the past, I am always amazed when companies tell me they do not have an active and up to date policy. Some business owners find the average Attorney’s price of $2,500 for a company cell phone policy a little too steep for their budget. Others try to write one themselves, which can be a daunting and overwhelming task. Still others are just unaware of how vulnerable their company is without one.

Why would you want to create a policy for every employee in your company sign? Other than the fact that we live in the most litigious nation on the Earth, you also need to protect your business in other areas as well.

Traffic and Safety Laws

Employers that have employees driving company owned vehicles during the course of business are very much at risk at 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 provides that an employer is responsible for the harm caused by its employee if that employee, using a company cell phone, was acting within the course and scope of his or her employment at the time that the accident occurred.

FACT: Plaintiffs often claim that their employer is directly negligent for its own conduct in encouraging or permitting employees to use mobile devices for business without adequate policies and training of those policies.

FACT: It doesn’t matter if the call is being made during regular office hours or not; what matters is that the call is somehow work related and the device they are using belongs to YOU! Employers can be found liable for any damages caused by an employee acting within the scope of his or her employment. Employers can now be found negligent if they fail to provide an adequate policy and proper training.

– Recently, in the state of Virginia, a sales rep returning home from work, was talking on her cell phone with a customer. She accidentally struck and killed a teenage girl. The family of the girl filed a $30 million lawsuit against the employer, claiming the company was negligent in providing cell phones to their employees without providing a company cell phone policy or a safety policy. The family won that suit.

•In Arkansas, a jury found a lumber company liable after one of their employees struck another car, gravely injuring the passenger. At the time of the accident the employee driving the vehicle was using the cell phone for a business call. This particular case ended up being settled for $16 million. They had no 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 a work-related call after hours on his company cell phone. No policy in place.

FACT: Employers can be 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 necessary or an encouraged option as part of their job.

IRS Regulations

FACT: IRS guidelines require company issued cell phones and wireless data devices be used only for business purposes; otherwise, personal use of these devices must be claimed as a taxable benefit. Your company could be penalized and audited for non-compliance of this rule. The IRS can declare that all undocumented use of a cell phone in your company is personal and can treat the 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 personal cell phones being used in the workplace. Companies are being audited more often and as a result they are paying serious penalties and fines for non-compliance. You need a policy in place not only to guide company employees regarding the use of cell phones but also to protect your company from these audits. If you have set policies in place that your employees have signed, then you are protecting your business.

-A company was audited by the IRS for cell phone compliance and fined over $19,000 for not have a clear enough policy about employees making personal cell phone calls on their company phones and for making business calls on their personal phones.
Federal and State Labor and Wage 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 law restrict and prohibit an employer from making pay deductions for damaged mobile devices or for failing to return company issued cell phones or for damaging equipment. In most states if you are found at fault for deducting money from an employees paycheck for a lost or damaged phone, and unless your policy is worded correctly, you can be sued for triple damages.

The FLSA

FACT: The Fair Labor Standards Act requires that non-exempt employees must be paid for all hours worked. If, for example, a non-exempt employee checks work email from home or takes calls from a customer on his company mobile phone, the time must be counted as hours worked.

Monitoring and Tracking

Do you have your employee’s consent to track the whereabouts of your company’s mobile devices? Without consent you walk a fine line concerning privacy rights. You need a policy that is very clear and specific about tracking the whereabouts of your cell phones so that you are not infringing on any one’s privacy.

-A Florida Roofing company was sued by an employee when he discovered 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 usage. This was considered an invasion of privacy because the company had no policy in place that informed the employee that his cell phone could be tracked at anytime. The employee was awarded $500,000 in a civil suit.

Other issues

FACT: Employers are now facing increasing claims by employees for health problems allegedly associated with cell phone use. This is happening even though the science appears inconclusive and contradictory. Workers who use cell phones while on the job have now begun to file workers compensation claims and lawsuits based on the theory that radio frequency radiation from cell phones may lead to various forms of brain cancer or other maladies.

Employers should protect themselves with a policy that informs employees of the potential health risks associated with the use of a cell phone, and even suggests or requires using a hands-free device. The policy should state that employees will not hold their employers liable for any suspected health issues that may result from using a company-issued mobile device is critical.

Privacy Concerns

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

FACT: Employees may have their picture taken in private areas, and can file suit against your company for invasion of privacy or harassment. Do your employees have cell phones with cameras and video features or Smart Phones with scanners? Do you have a policy in place that covers ownership of images taken with your company-issued mobile devices? Do your employees have broadband or Internet cards? Do you have a policy in place that prohibits your employees from connecting their personal phones to USB ports on their computer?

-An employee of a Delaware company decided it might be fun to play a joke on a fellow employee and take a picture of him relieving himself at a urinal. He snapped the photo on his company cell phone and showed to others back at the office. When that got a few laughs he posted it on the Internet. 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 in place 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 company is a small price for a document that could possibly save your company from an expensive lawsuit. It’s really a small price to pay for such a powerful defense, should you need it. So why put your company in a vulnerable state by not having one?

Wouldn’t you rather have a signed document in hand when an employee decides he wants to sue you? A signed document that says he has given his permission on the very thing he is trying to sue you for? Sure you would. Without a sound policy in place… you are a sitting duck!

Cell Phone Safety – How to Be a Responsible Driver

Introduction

Studies have shown that using a cell phone while driving does increase the risk of a crash, but the amount of increased risk is still difficult to be known. It is agreed, however, that talking on a cell phone while operating a vehicle is a distraction that may impair driving ability, especially teenagers who are sometime easily occupied by other things. The aim of this paper is to present available data concerning the impact that cell phone use has on driving ability and increasing crash risk. In November 1, 2001, the State of New York enacted a law banning all drivers regardless of age from talking on a handheld cell phone while driving the vehicles. The move was later followed by the state of North Carolina, who on December 1, 2006, although the programs were not relatively same in term of who they were trying to reach, began prohibiting use of any cell phone communication device by drivers younger than 18 years old.

These studies were done to reduce risks to teenagers drivers and people of all ages by reducing highway deaths and injuries, reducing higher crash risk for teenagers due to their greater difficulty handling distractions and their high use rates of cell phone and other communication devices and to add restriction on graduated driver’s license along with the expectation that it would be viewed, accepted and enforced in the same way as is the case for the other protective elements of the graduated licensing system. In the North Carolina’s teenager drivers’ cell phone restriction, there were two or more exceptions for teenagers drivers to use cell phones while on public roads. These exceptions include talking to a teenager’s parent or legal guardian or talking to emergency response operator, hospital, physician’s office or health clinic, a private or privately owned ambulance company or service, fire department or law enforcement agency regarding an emergency situation. In New York, the exceptions were limited only to placing an emergency phone call to 911, calling or using a hands-free device, manual dialing or using a handheld phone when the vehicle is stopped.

Goals of the studies

The goal of the studies is to see whether the ban on cell phones use in two states, New York and North Carolina has led to reduction in car related deaths and injuries on public roads.

Aim and Objectives

The aim of these studies is to undertake an evaluation of the longer term effects of New York State’s law on drivers’ handheld cell phone use and the short term effects of a teenage drivers cell phone restriction in the state of North Carolina to determine the impact on all stakeholders and assess the effects on any issues relating to the quality and effectiveness of the cell phones use. The objectives of these studies are to:
• Determine whether cell phone users see the ways in which the states operate as useful, appropriate and effective way to reduce highway related deaths and injuries.
• Determine whether substantial short term declines in drivers’ use of cell phones and other communication devices after a ban, were sustained one or more years later
• Assess the implementation of the program and the extent to which they meet their goals
• Assess the impact of the cell phones use on the cell phone users/ other key stakeholders
• Assess planning and monitoring mechanisms used by each state at its local level

Methodology/Design

To ensure a comprehensive evaluation design, the qualitative arm of the studies included focus groups, observation surveys to measure the extent to which the new restriction affected teenagers’ cell phone use while driving, telephone interviews by professional telephone interview organizations with the focus to sampled randomly households using a list of households in North Carolina believed to have one or more teenagers ages 16 or 17. Pilot testing with the focus on observing drivers in the morning and pre-law observation which was conducted five months after the law went into effect were also used. In North Carolina observers attempted to gather information on how a cell phone was used, for example, held to ear, visual evidence of dialing, text messaging or game playing or evidence of hands free use. Information on type of phone use was not recorded in New York State. In New York, daytime observations of drivers were conducted at controlled intersections on geographically dispersed, heavily traveled roads in four small to medium sized upstate communities such as Albany, Binghamton, Kingston and the village of Spring Valley. Observations were conducted on Thursday and Friday in seven observation period throughout the day. Approaching vehicles in the closest two lanes were observed by a person positioned at the roadside at or near the intersection. Excluded in the observations process in the New York State were emergency vehicles, tractor-trailer trucks and buses. In state of North Carolina, no particular groups were excluded in the observations process.

The pre-law interviews were conducted on November 2006 in North Carolina with 400 groups of parents and teenagers and post-law interviews on April 2007 with relatively same groups of parents (401). Interview completion rates, those who complete interview with both parents and teenager from the same household, were 72% and 67% in the pre-law and post-law surveys while in New York State (based on December 2001 pre-law and march 2002 post-law surveys combined) use rates by driver characteristics were calculated and differences were judged only if the 95% confidence intervals of the estimated use rates did no overlap. In North Carolina cell phone use rates were similar for males and females while cell phone use rates were higher for drivers younger than 25 than for drivers ages 26-60 in New York. However, the differences were not significant. Five counties were identified in North Carolina for study (Buncombe, Guilford, Mecklenburg, Orange, and Wake County). The counties selected represented the most populous areas in the state and ranged in population from 120,000 to 825,000 each according to U.S. Census Department’s 2007 North Carolina statistics. Within each county, schools were selected for observation based on the sufficiently large number of teenager drivers (approximately 100 or more and the approach roadways and parking configurations at schools that allowed for observation of most teenage drivers when departing. Separate focus groups in both states involving parents, school staff and external stakeholders were held in each state. A total of 27 focus groups were conducted across the North Carolina. All regional line managers of Telephone Interview, a professional organization contracted by state’s mobile phone health program were also involved in individual interviews.

Studies examining the effects of age on crash rates among drivers with limited experience also were not considered. Although these studies have found clear age effects, they failed to address the effects of experience. Similarly excluded were studies examining the effects of experience on crash among drivers of a limited age ranges. These studies demonstrated that 16 and 17 years old beginners had high crash risk because of driving inexperience but did not address the effects of age. Finally, the review excluded three studies of the effects of age and experience on motorcycle crashes because it was not clear the findings could be generalized to other crash types. Motorcycle travel is inherently more hazardous than travel by other types of vehicles, and crash-involved motorcyclists differ from other crash-involved drivers in important respects.

Measurement issues

In terms of variables, the studies were using pre-law observations, drivers’ handheld cell use rate, drivers characteristics, phone us/ nonuse, driver gender, belt use, number and gender of passenger such as all male, all female or mixed and vehicle type, for example, car, SUV, pickup truck or ban. In the state of New York, the measurement was on cell phone use rates by driver gender, age and which type of vehicle. Use rates by driver characteristics were calculated for the pre-law survey (December 2001, March 2002 and March 2003 surveys combined). Differences were judged significant if 95% interval of the estimated use rates did not change. For all survey in New York and North Carolina, cell phone rates were similar for males and females regardless of age. Use rate were higher for drivers younger than 25 than for drivers ages 25 to 59 in New York, but the differences were not significant. Use among drivers ages 60 and older was negligible across all surveys in New York. With regard to which vehicle type, drivers of cars had the lowest use rate, but only the difference between drivers of cars and drivers of SUV was significant in all New York surveys, but remain unknown in the North Carolina surveys.

Data to develop different measures, for example, crash and exposure measures sometimes were collected at different times and or pertained to different time periods. Injury crash rates for drivers licensed 12 months versus 1+ years computed by age and gender. Multiple regression models were also developed. Some relative risks calculations provided for experience effects among younger drivers. Overall positive age effects for males were similar but weaker effect for females. Among novice males, crash rates similar for ages 16 and 17, and 18 but much lower at age 17; among novice females, rates higher at 16 than 17 to 19. Crash risk lower among male or female novice versus experienced drivers for ages 16 to 25. No marked experience effects among older females or males. Since none of these studies has talk about it, in the future we might need to look into the annual miles driven, miles driven during previous year, and miles driven during previous week by drivers regardless of ages to come up with outcomes.

Outcomes

• More drivers, both teenagers in North Carolina and all drivers in New York, stops driving while talking on handheld cell phones due to threat of ticket.
• More cell phone use while driving has resulted in citations being issued to increase public perception that state government is serious about the cell phones use while driving on public roads.
• Increases in hand-free device technologies due to pressure from the state government
• Reduction in number of deaths and injuries sustained by drivers driving while on handheld cell phone in New York and North Carolina
To achieve these outcomes the followings have to happens based on the studies’ conclusions
• Threat of imprisonment- which the two states have not yet adopted
• Parental involvement- which north Carolina state has already adopted
• Parental supervision- none of the states is in position to adopt the strategy
• Law enforcement agencies taking tough stands against those who disobey the laws

Statistical Analysis

Estimates were derived of the proportion of drivers in qualifying vehicles who were using handheld cell phones in New York and of teenagers’ drivers who were talking on handheld cell phones while driving in North Carolina. Ironically, changes in phone use rates between the post-law and pre-law surveys in each state were examined, with 95% confidence interval for relative rates obtained in North Carolina. In New York, rates were compared between the pre-law and post-law and short term post-law surveys with associated 95% confidence intervals. Assuming that patterns cell phone use among teenagers’ drivers in North Carolina would have followed situations observed among drivers in New York, absent North Carolina’s restriction on teenagers’ drivers cell phones use, logic regression analysis made a direct statistical comparison between the changes observed in cell phone use rates in New York relative to the observed change in a teenagers’ drivers cell phones use in North Carolina. The estimated percentage change in use rates in New York relative to those percentage changes in North Carolina based on the ratio of “after” and “before” odds ratios, car type, driver gender and passenger presence were a functions of the model coefficient for the interaction variable. Differences in survey responses between teenagers and their parents were tested for statistical significance using chi-square tests of independence while cell phones use were observed using drivers characteristics observed during the 10 minute observations of passing traffic and applied to the total vehicles counted during the 35 minute cell phone observation periods.

The methods and findings of the two studies are summarized in and grouped according to whether driving exposure was considered in addition to age and years of driving experience. Data were obtained from self-reported driver surveys or from government records such as driver’s license records, police crash reports, or insurance claims files. The lower age limit ranged from 16 to 18, and the upper age limit ranged from 25 to 70 and older. The lower bound for years of driving experience generally was 1 year or less, and the upper bound ranged from 2 years to 38 years or more. The primary measures of exposure were cell phone citations issued during the first 15 months, gender drivers’ ages and the vehicle type (Car, SUVs or van). During the 2006, actually two to eight weeks before the implementation of the cell phones ban, phone use was observed for 6,164 teenage drivers in North Carolina and 1,257 in New York for all drivers. In the beginning of the following year, approximately 5 months after the ban implementation, phone use was observed for 6,401 teenage drivers in North Carolina and 25,694 in New York. Characteristics of the samples observed were similar in both New York and North Carolina. In the pre-law survey approximately half of observed teenage drivers were male in North Carolina (47%) while both male and female were observed in New York (2.3% to 1.1% immediately after the law took effect). There was not significant change in observations during the post-law in both states. About half of teenage drivers were observed driving alone (without passengers) in North Carolina (52%) and none was reported for the New York.

Cell Phones in Schools – The Great Debate

With today’s technological advances making cell phones pervasive into nearly every aspect of people’s lives, it comes as no surprise that cell phones in schools have become a hotly debated topic. There are advocates on both sides: some claim that cell phones are an inappropriate distraction during school hours, others embrace students’ familiarity with them and utilize them in class. While the jury is still out, both sides do have some intriguing points.

Mobile phone advocates claim many benefits to using the devices in educational settings; some of these advantages include:

  • Parental Involvement. Students can use cellular phones equipped with cameras to take pictures of projects they complete in class, such as group projects that utilize only class time. Generally, in these situations, students do not conduct any research or assembly of such projects at home, so parents do not get to see the result of their child’s efforts in the classroom. Allowing students to use cell phones in this capacity encourages parental involvement in their child’s life, as well as supporting their educational development.
  • Missing Assignments. Teachers can enact a buddy system in which students email or text each other with the details of assignments their buddy missed due to an absence. This will save teachers valuable time they would have otherwise spent assembling makeup packets, and will instill a sense of responsibility among students for themselves and each other.
  • Note-Taking. Students that have problems keeping up in class when taking notes can utilize the camera feature of their mobile phone to snap photos of the notes and save them for later studying and showing parents or tutors, as well as classmates who may have missed part of them. Teachers can also incorporate taking photos of notes into their buddy system for missing assignments, and allow students to forward missed information during class time to absent classmates, and likewise allow them to receive such information if they are absent.
  • Real-World Tools. Cell phones usually have features such as calculators, which most high school math classes require. Using the calculator function of their cell phone can teach students the real-world skill of utilizing what they have on hand to calculate mathematical problems in their everyday lives.
  • Improving Focus. Students with cell phones that feature music capabilities and ear buds can use them during homework periods or times of otherwise independent study. Many students find listening to music a relaxing study habit and studies of learning styles indicate that some students learn best while listening to music while working problems or reading. Students who are comfortable while studying are more likely to study longer, more often, and produce more positive results than those who do not listen to music.

On the other hand, many believe that cell phones will only contribute to already existing problems in schools, such as cheating, disrespecting teachers and staff, and instigating trouble amongst other students; some even cite the possibility of utilizing cell phones for illegal activities during school.

  • Cheating. Using a cell phone, regardless of the age of the user or the location from which they use the phone, comes with responsibility. Some advocates of banning cell phones in schools state that utilizing the camera function of a cell phone enables students to cheat on tests by snapping photos of answer keys, test contents, or the answers on a neighbor’s paper.
  • Disrespect. Students could use their phones for all sorts of mischief in class, including using the audio recording function of them to record teachers or other staff during lectures or other conversations without them being aware of the recording. Students could then use those recordings to take the speaker’s words out of context and present them in a manipulative light.
  • Instigating Trouble. Students can use their cell phones during school to cause problems amongst students and bully others. School-related violence and cases of bullying are on the rise, and officials already have their hands full dealing with problematic students and keeping order in their institutions; allowing students to use devices such as cell phones during school hours will make such problems easier to perpetrate and harder to control.
  • Illegal Activities. Students can use cell phones during school to carry out illicit activities such as placing or taking orders for drug deals, provoking students to fight each other, take and place bets on sporting events or other forms of gambling, or planning events such as bomb threats and other security breaches.
  • Distraction. Almost all of those in favor of banning cell phones from schools say that allowing their use in class will distract students from their studies. Features such as internet access and video gaming capabilities are the most frequently cited as the biggest distractions. While the internet can provide legitimate researching capabilities, playing video games provides no educational benefit at all.

Today there are schools making use of both policies. Pasco County’s Wiregrass Ranch High School utilizes mobile phones in many of its classes, including English, math, and social studies. Teachers allow students to use their phones to research literature and authors, calculate math problems, and take pictures for class projects, among other tactics. Students in this district say that they feel more respected and trust than students in districts who do not have such a privilege, and acknowledge that the devices can help them learn more about their world, both past and present. Regarding the area of behavior management, teachers in the school no longer must battle students on a daily basis to put their phones away or to pay attention during class. Instead, they are integrating cell phone usage into their lesson plans and students are participating during class more and benefiting. Students can take care of their personal business on their cell phones before and after school as well as during lunch and passing periods, so personal distractions really are a non-issue. Administrators acknowledge that some students will and do abuse the privilege. Rules, such as use restrictions and removal of other non-cell phone related privileges, are in place to discourage would-be goof-offers.

Most schools throughout the country instate some type of cell phone ban in their districts, mostly due to their connections to illegal activity and their disruptions during class. Some cite security issues, stating that ready student access to cell phones while on campus does not make them safer in the event of a violent event, even going so far as to state that they can complicate the jobs of emergency responders in such an instance. These schools also say that ready access to cell phones during the school day only inflames rumors and worsens bullying situations among students. As such, many of them enforce a “we see it, we take it” policy, and notify students as well as parents of the strict nature of such policies.

Some schools have begun to relax their mobile phone policies while others continue to uphold their bans, even tightening up their rules prohibiting the presence and usage of cell phones while on campus. Both sides have their own clear reasons for keeping their courses of action, and only time will tell as to which theory is more successful in educating students.