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Oct 1, 2013

Cell Phone, Text and Email Policies


Category: Employment

ADD CELL PHONE, TEXT, AND EMAIL POLICIES IF THEY DON’T ALREADY EXIST IN YOUR COMPANY’S PERSONNEL POLICIES.

OSHA has made a push to encourage company texting policy under its distracted driver campaign, which makes it a good time to look over your own company’s policies to see if they follow best practices in this area.  Below are some considerations to have in mind when you do that.

a. Cell phone use policies

Given the wide use of cell phones, and other electronic media, companies should consider having a policy on their use.  Even if use at the company itself is not regulated, at least consider instituting a policy on use while driving to protect the company should an accident occur as a result of an employee using a cell phone while driving and to help prevent such accidents altogether.  Thus, consider at a minimum using language that prohibits cell phone use while driving and requiring an employee to pull over to make or receive a call.  For example:

Employees whose job responsibilities include driving are expected to refrain from using their phone while driving – use of a cell phone or PDA while driving is not required by the company. Safety must come before all other concerns. Regardless of the circumstances, including slow or stopped traffic, employees are required to pull off to the side of the road and safely stop the vehicle before placing or accepting a call.

Even if a company allows use of a hands-free device while driving, there certainly should be an absolute ban on texting or otherwise sending typed messages while driving.  OSHA now has a sample policy to deal with the issue of distracted driving at: https://www.osha.gov/distracted-driving/modelpolicies.html.

A company may also want to have a policy that addresses use of cell phones at work.  For example:

While at work, employees are expected to exercise the same discretion in using personal cellular phones as is expected for the use of company phones. Excessive personal calls during the work day, regardless of the phone used, can interfere with employee productivity and be distracting to others. Employees are encouraged to make personal calls on non-work time where possible and to ensure that friends and family members are aware of this policy.

b. Texting and training

There isn’t a day that goes by that someone doesn’t send an email they should have thought twice about sending or that contains content that the sender would never say to the recipient in person.  The informality of the medium of communication becomes a particular problem in the workplace, both with internal and external communications.  That is even more true of texting, and instant messaging, which consist of rapid fire messages where even less thought is given to the appropriateness of the content.  Such communications are more vulnerable than emails to harassment, inappropriate jokes and comments, and unprofessional conduct.   The answer isn’t necessarily to ban such media but to provide training on them. 

The same is true of the use of other social media.  There are a number of situations that employees would agree are problematic but just didn’t think of the problems at the time they were firing off a message or a tweet or a Facebook update.  New policies are not necessarily required but social media should be added to existing policies on employee conduct and training should be done to remind employees of how their conduct electronically is covered.  It isn’t just sexual content in communications or defamatory conduct that employees should be sensitive to – given the access to their electronic communications, many of which can be read by anyone anywhere, employees need to more sensitive to their electronic postings than nearly anything else.  Unfortunately, the speed of those postings dulls sensitivity rather than encourages it.

HR Magazine published an article on precisely such scenarios.  As an example of the reach of electronic media, an employee posted a derogatory comment on Twitter about the city he was travelling to in order to meet a prospective client.  That prospective client read the tweet and cancelled the meeting.  In another example, an employee’s update on Facebook about a project at work clued folks into a delay in an anticipated product launch and the exposure of that delay led to a decline in the company’s stock.  As HR Magazine noted, the problems generally stem from the fact that employees’ use of electronic media is too casual and the employee didn’t think enough about what was being written.  Those factors make training important.  Explain what happens when personal postings get tied to the company or customers read offensive blogs or information that felt witty and personal at the time but that was also both negative and public.  Some of it is common sense but it is combined with an understanding about how the material sent out electronically may be viewed or used by others and how it can reside on the internet in a way that causes any thoughtlessness to live on, with deletion difficult once it is out there and shared.  As a result, any training should explain the whys of the policy and provide examples of appropriate and inappropriate use.

c. Email policies and why you should have one

Employers risk liability for conduct or communications that are conveyed through their email system.  For example, a sexual harassment case may be based on lewd email messages sent to an employee.  With employees doing things like texting while driving on the job, the chances for liability expand.  Of course, all this is combined with the concern about employees spending work time on line but not actually working.  With respect to emails, in order to combat abuse of workplace email systems, employers have begun monitoring workplace communications.  There are risks in monitoring, however, which in part are inescapable due to the lack of court guidance in this area.  There are a number of ways that those risks can be managed, however. 

First, it is necessary to understand that there are both federal and state wiretapping laws that apply to Maine employers.  For municipal employers, there are also constitutional limitations that apply.  Those wiretapping laws prohibit the “interception” of communications, which has been interpreted by some courts to mean the “contemporaneous acquisition” of a communication (that is, the employer gets hold of the communication during its transmission).  A review of emails already stored on a company’s computer system is thus relatively unlikely to be covered by the wiretapping acts. 

In addition, the wiretapping statutes provide certain exemptions.  One important exemption for many businesses is when there is “consent.”  Consent may be explicit or implied.  Implied consent means that, even if an employee does not state out loud or write down that they consent to a particular instance of monitoring, the circumstances show that the employee knowingly agreed to the surveillance.  Email policies are critical to establishing that there was consent.

Email policies are also critical to reducing the risk of privacy claims.  The best method of reducing the risk of privacy claims for monitoring employee email is to make everyone who uses and receives company email aware that there may be monitoring of the system and that privacy should not be expected.  A company should, at minimum, create and put into writing an email policy, distribute that policy to every employee, consider having employees sign a receipt that they have received such a policy, and provide some training on how to use email systems properly.  Prior to actually monitoring emails, there should be a specific concern that leads to such monitoring and whatever monitoring is done should be tailored to address that concern.  Employees should be aware that their work emails may be monitored.  The person who does the monitoring should be someone in management and the information discovered should be disseminated to only those in management who need to know.

d. Guidelines on best practices for use of company emails

As most of us know, the further we get from face to face contact, the less careful we tend to be about what we say.  The best overarching rule is a version of the golden rule:  don’t email something to someone you wouldn’t want said to you in person.  But electronic communications are often rapid, not well thought out, and too casual for many business purposes.  Most employees can use a few reminders the pitfalls of such communications, with training not such a bad idea in combination with an updated policy.

This article is not legal advice but should be considered general guidance in the area of cell phone, text, and email policies.  Rebecca Webber is an employment attorney at Skelton, Taintor & Abbott in Auburn, Maine.  You can reach Rebecca Webber at 784-3200;  or rwebber@STA-law.com.