Cell Phones at Work

The use of cell phones, PDAs and other electronic devices in the workplace has skyrocketed in recent years, and many employers’ policies have not kept up.  The following are some of the issues:  Employee privacy in personal data kept on a cell phone that is also used for work; employer ownership of data kept on a cell phone that is also used for work; paying nonexempt employees for time spent checking their messages outside of work hours; who is entitled to the phone number if the employee changes jobs; use of the cell phone for personal calls during work hours; use of the cell phone as an audio recording device; use of the cell phone to photograph or take video of confidential information or processes; and use of the cell phone while driving on company business.  There are others, too – this list just scratches the surface.

 Some of these issues are covered by existing laws, such as case law that governs the reasonable expectation of privacy at work; telecommunications laws regarding who can obtain data about phone use from the phone company; the FLSA and state wage and hour laws regarding when employers owe employees overtime for performing work outside of work hours; state laws such as Washington’s that prohibit audio recording under most circumstances without the consent of all parties; the Uniform Trade Secrets Act regarding protection of an employer’s trade secrets; HIPAA regarding the protection of medical information; industry-specific confidentiality laws; and laws regulating the use of cell phones while driving.

 The existing laws provide a broad framework that can be refined and clarified through well-drafted employee policies.  For example, such policies can set expectations regarding privacy, confidentiality and trade secrets and establish in advance who is entitled to access phone company data and retain the telephone number when an employee leaves.  Well-drafted policies can also limit an employer’s exposure to overtime claims and to claims for damages arising from accidents that occur when employees use cell phones while driving.  Policies can also clarify ownership of information and intellectual property such as ideas and inventions that are created during work time using a cell phone.

 If your cell phone policies are not up to date, an attorney with expertise in this area who is familiar with the laws of your state can go over the issues that are specific to your workplace and draft a policy that meets your needs.  Ogden Murphy Wallace’s Employment and Labor Law Practice Group drafts workplace policies in Washington State.  Contact Karen Sutherland in Seattle or Gil Sparks in Wenatchee for more information.

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