Every day, construction employers are finding new ways to use smartphones to increase their employees’ efficiency and effectiveness. While the devices may be great for users, they present a myriad of potential problems for construction employers. Here are five of the most common potential employment problems caused by employees’ smartphones.
1. Smartphones Can Be Used to Record or Steal Trade Secrets or Confidential InformationA company’s information and trade secrets constitute some of its most valuable assets. After all, no construction employer wants its competitors to know contact information for its customers, vendors, subcontractors or prospects; its marketing strategies; or the details behind its bids. Yet, with a smartphone an employee can copy, record, distribute or damage such information easily and quickly.
Employers should have “acceptable uses” policies, non-disclosure agreements and other policies in place to discourage or prevent such adverse actions. Employers also should maintain adequate software programs or systems to detect the leakage or interrupt the downloading of sensitive information.
2. Smartphones Can Be Used for ‘Textual Harassment’
Using smartphones to send offensive messages or images can be evidence of discrimination, harassment or retaliation in violation of Title VII, as well as other state and federal laws. Under Title VI alone, punitive damages for can be up to $300,000 for the largest employers. Thus, employers should adopt equal employment, harassment and cell phone policies, as well as train employees on the proper use of their smartphones and other electronic devices.
3. Smartphones Can Be Used to Raise Protected Complaints or Grievances
The National Labor Relations Act gives employees the right to engage in “concerted activities” for their “mutual aid and protection.” “Facebook firings” recently have drawn national attention because the
National Labor Relations Board has applied long-standing language to protect employees who use social media to complain about issues or to share information about their workplaces. In fact, the board’s acting general counsel recently identified the use of social media as a “hot topic” and prepared two comprehensive reports outlining the types of employee conduct that will be protected.
The
U.S. Chamber of Commerce prepared its own analysis of the emerging law with respect to employee use of social media. To avoid violating these rules, employers need to update their social media and acceptable uses policies, as well as train employees on the proper use of such devices.
4. Smartphones Can Be Used to Prove Wage and Hour ViolationsWage and hour claims have increased more than 325 percent during the past 10 years and are among the fastest growing labor and employment law claims across the country. Smartphone applications allow employees to track their hours worked and to identify possible wage and hour violations. The Department of Labor’s
Wage and Hour Enforcement Division made it clear in a recent news release that it will utilize its own application as evidence of wage and hour violations.
To prevent wage and hour claims, employers should review their payroll and recordkeeping practices. Non-exempt employees should maintain accurate records of their hours worked and earn at least the applicable minimum wage and overtime at the rate of time and one-half of their regular rate.
5. Use of Smartphones While Driving Can Violate State and Federal Laws
Last January, the
U.S. Department of Transportation implemented a new rule that prohibits the use of hand-held phones and devices by drivers of commercial motor vehicles. California, Georgia, Louisiana and other states have adopted similar laws prohibiting drivers from texting, e-mailing or using cell phones while driving. Similar laws are expected across the country. Moreover, if employees who use smartphones while driving are involved in motor vehicle accidents, employers can be liable for huge monetary damages for negligence and other causes of action.