Are smartphones a Boon or a Bane to Employers?

December 16, 2014Articles InsideCounsel

Reprinted with permission from the December 16 issue of Inside Counsel. (c) 2014 InsideCounsel. Further duplication without permission is prohibited. All rights reserved.

September’s announcement of new iPhones underscored the importance of smartphones to consumers. It is hard to deny the centrality of smartphones in our culture. After all, most new products are not launched with televised press conferences and a free album released by U2.

Employees may not need a smartphone for work but still are likely to own one. Many employers encourage smartphone use, paying for service or devices to encourage their employees’ prompt response to inquiries and quick resolution of workplace issues.

Is there a downside to this technology? Yes, according to a recent survey by the University of Southern California’s Marshall School of Business. The survey tracked participants’ thoughts on smartphone use during meetings. The key findings are:

  • 86 percent think it’s inappropriate to answer phone calls during formal meetings
  • 84 percent think it’s inappropriate to write texts or emails during formal meetings
  • 75 percent think it’s inappropriate to read texts or emails during formal meetings
  • 66 percent think it’s inappropriate to write texts or emails during any meetings
  • At least 22 percent think it’s inappropriate to use phones during any meetings

To ban or not to ban

A natural response by employers may be banning smartphones during meetings. There have been notable examples of such bans. President Obama has a “no device” rule when meeting with cabinet members, who must leave their smartphones in a basket outside the Cabinet Room. At least one employer, Monongahela Valley Hospital, implemented a creative strategy to prevent cell phone use in meetings — employees whose phones ring during meetings must get up and do the chicken dance.

Before adopting a policy banning smartphone use in meetings, employers should first evaluate if there are truly emergent situations that must be addressed before the end of a typical meeting. If not, then a ban on smartphone use may be an appropriate solution to employee distraction in meetings.

The interesting point of USC’s Marshall School of Business survey was that opinions on the use of smartphones during meetings varied greatly by age. Millennials were three times less likely to think it was inappropriate to check text messages and emails in informal meetings. Human resource managers are already aware that navigating generational divides can lead to complaints of age discrimination. Although Title VII of the Civil Rights Act only protects individuals over 40 from age discrimination, some state and local laws do not have an age restriction and thus allow claims of reverse age discrimination to be filed by individuals under the age of 40. An employer who has a policy that is only enforced by certain managers or against certain, but not all, offenders, has a greater risk of age discrimination claims, especially as it is more likely that the offenders will be younger employees.

In response to these concerns, some managers may choose to try to recapture employees’ focus by specifically encouraging the tweeting of questions during meetings. There are several companies who sell “tweet wall” services, which capture tweets from participants who use the event’s hash tag. Tweet walls can be used for attendees to pose questions and for the presenters to respond. It is not only technology companies that consider utilizing tweet walls. For example, in 2012, the European Ombudsmen to the European Union set up a meeting with European leaders to discuss better ways to support citizens of the EU. Citizens attending the meeting were encouraged to tweet questions to the gathered leaders.

Big Brother or smart business?

Perhaps your company is not large enough for a tweet wall or unwilling to embrace technology as much. Perhaps you would like to understand exactly how employees are using their smartphones. As employees utilize technology more at work, employers have responded with computer-usage policies, some of which contain statements that employers may monitor employees’ computer and network usage.

For most employers, monitoring may mean reviewing employees’ email, documents created, and activity reports that show websites visited and files downloaded or saved to thumb drives. For some employers, monitoring may take a more comprehensive form, including the installation of key logger software, which records every keyboard stroke by employees and can be used to monitor smartphone use as well as desktop and laptop use.

Although it may be technologically possible to use key logger programs on smartphone devices, it may not be legal under federal and state wiretap laws. The Electronic Communications Privacy Act (ECPA) prohibits wiretapping unless one party to the electronic communication consents to the interception of that communication. The federal regulations interpreting ECPA do not address key logger programs, and there is an open question as to whether ECPA would characterize the use of a key logger program as an interception of electronic communications. If ECPA applies, notice to an employee of such monitoring may create implied consent to interception where an employee continues to use the company’s computer equipment and systems.

State wiretapping laws complicate this issue. Certain states’ wiretapping laws require that both parties to a communication consent to the interception of electronic communications. Giving notice to employees about the use of key logging software may ensure compliance with the ECPA, but that notice only ensures that one party to the electronic communication has consented to its interception.

Additionally, using key logger programs may cause additional liability under state workplace privacy laws. In the recent past, 14 states have passed laws restricting employers’ ability to request employees’ social media passwords or to demand that employees provide access to their social media accounts. Key logger programs may capture employees’ social media passwords where employees access private social media accounts using monitored computers, which may violate certain states’ workplace privacy laws.

As a result of these legal issues, employers should be cautious before installing computer monitoring software by consulting with legal counsel to get a full understanding of risks involved and develop policies that minimize legal exposure.

Reprinted with permission from the December 16 issue of Inside Counsel. (c) 2014 InsideCounsel. Further duplication without permission is prohibited. All rights reserved.