In a recent Supreme Court decision involving the Fourth Amendment, Justice Roberts noted that there are 396 million cell phones accounts in the United States for a nation of only 326 million people. The cell phone provides numerous functions including access to contacts, data, information and the internet. Some studies suggest people check cell phones every ten minutes and are less than five feet away from the phone most of the time. It seems the cell phone has become an integral part of daily living. While the development may be productive in terms of the overall access to information, it also creates certain risks that employers should consider.
In many instances companies operate on a platform of bring your own device to work (“BYOD”). Employers should consider what business information may be available to that employee on his or her personal cell phone. An employer is vulnerable if an employee is connected to the employer’s computer system and can access valuable confidential information through the cell phone. The risk is that the employer’s business information may “walk” out the door with the employee. Moreover, if the information gets comingled with the employee’s personal information, there could be a problem in terms of “unscrambling” or wiping the phone on departure. Certainly one approach is to not permit the employee to have access to the information on the phone. However, an employee may need access in order to perform his or her job responsibilities. Employers should consider whether to have a cellular phone policy that addresses how employees should use the phone, any issues regarding expectation of privacy, ownership of information, and wiping upon termination.
Additionally, a cell phone may cause distracted driving. Whether ringing, beeping, vibrating – the cell phone may cause drivers to lose focus. A driver’s perceived belief that the ever important text/email may have just come in can create an overwhelming desire to check/respond. To the extent an employee is on the road, the temptation to text, call or open an app may create serious risks. Distracted driving is alleged to be a contributing factor in 80% of the automobile accidents on the road today. Employers need to recognize this risk and be proactive in addressing it. Employers should consider having a policy regarding the use of cell phones while driving.
Cell phones are integrated into our daily activities – just look around at any restaurant, getting on an elevator, or at a stop light. No matter the time, place or circumstances, staying connected seems to be of utmost importance. A cell phone is certainly very beneficial in terms of facilitating access to people and information.
However, cell phones may also bring about certain risks. Employers may want to consider the risks which that may be applicable to it and any policies to put in place to address them.
Sonny Chastain is a partner in the commercial litigation and intellectual practice team at Kean Miller LLP. He represents clients in various commercial matters regarding contract negotiation and litigation, banking, breach of fiduciary duty, unfair trade practices, and consumer finance. He also routinely advises clients in matters regarding copyright and trademark registration prosecution, brand management, and IP infringement litigation.