United States: Cell Phones At The Workplace: Protecting Employee Safety

Seyfarth Synopsis: As OSHA's enforcement relating to employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard.

Business today is regularly conducted through cell phones, as a necessary tool for employees to communicate and access digital information. Bring Your Own Device programs and employee cell phone use present a range of employment and labor liabilities for employers: smartphones can be a forum for employees to engaged in protected concerted activity, an opportunity for unauthorized overtime work, and a tool to access inappropriate images and harass coworkers.  Yet the biggest challenge posed by cell phones is  their inappropriate use.

Distracted driving is the number one cause of workplace fatalities, and cell phones are the biggest cause of distraction in the forms of text messaging, talking, and game-playing. Cell phone distractions can impugn employees' spatial awareness, recognition of hazards, and operation of dangerous equipment. Finally, studies show that certain cell phone batteries have resulted in fires and explosions.  Accordingly, employers with Bring Your Own Device programs or who provide cell phones for use at the workplace must understand and manage any risks that may be associated with the use of these devices.

Distracted Driving

Employers whose businesses require the use of cars, vans or trucks must understand that their policies and training regarding the safe operation of those vehicles–and the inclusion of a clear prohibition against texting on a hand held cell phone while driving–are of strong interest to OSHA, the law enforcement community, insurance carriers and potential civil litigants. Failure to address this hazard can result in significant employer liability.

Federal OSHA maintains a Distracted Driving Initiative, in which it targets texting as a major cause of workplace injuries.  In a 2010 open letter to employers, Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) David Michaels said, "It is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving....Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs. OSHA will investigate worker complaints, and employers who violate the law will be subject to citations and penalties."  OSHA has used its General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances.  OSHA considers "distracted driving" which can include texting (and potentially the use of cell phones for telephone calls) to be a "recognized hazard" under the General Duty Clause to employee safety.  Penalties for willful violations of the Act under the General Duty Clause can be as high as $124,709.

Even with a no-texting policy, OSHA may cite employers when employees are texting while driving, where texting is a common workplace practice. OSHA indicates that "when it receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, [OSHA] will investigate and where necessary issue citations and penalties to end this practice."  Accordingly, employers need to be wary of workplace texting, and make clear that texting while driving is prohibited.

Distracted Operation of Industrial Machinery

Inappropriate use of cell phones presents safety hazards far beyond the driving of personal vehicles. At the most obvious, operators of Powered Industrial Trucks or other industrial machinery, including overhead cranes, can be distracted by cell phone use.  OSHA regulations squarely forbid the use of cell phones in construction regulations pertaining to cranes and derricks (29 C.F.R. § 1926.1417(d)), but the hazard exists across any dangerous equipment.  Accordingly, active operation during the use of industrial equipment should be strictly prohibited.

Distracted Employees at the Workplace

As any employer with industrial machinery knows, preventing accidents starts with making sure employees are aware of their surroundings.  The inappropriate use of cell phones imperils employees' ability to recognize and react to hazards, such as passing forklifts, which can hit pedestrian employees.  Of recent concern is the use of "augmented reality" games, such as Pokémon Go, in which players view the world through cell phone screens, walk around while distracted, and search real world sites for game-related information.  These games encourage cell phone use and distraction while walking around, and should be prohibited from the worksite.

Additional Liabilities for Distracted Employees

Of course, OSHA citations and associated penalties are not the only liabilities that employers must be concerned about when it comes to cell phone distractions. For example, thirteen states ban the use of handheld phones while driving for talking.  46 states and the District of Columbia ban text messaging for all drivers, and in many of the remaining states similar bans are in place at the county or city level.  These laws make texting while driving illegal and also open employers to liability for accidents that result from their employees' distracted driving and improper use of cell phones.

Employees face both individual civil and criminal liability for damages that result from accidents caused by texting while driving or engaging in other work Likewise, employers face vicarious liability for the acts of their employees under agency law for personal injury or property damage they cause during the course of employment.  When an accident happens as a consequence of distracted driving or operating machinery while the employee is on company time, the employer is potentially liable.  Where the employer has not affirmatively prohibited texting while driving and enforced that policy, the employer faces potential liability as a result of the accident.

Vicarious liability, as it is called, is not a new legal concept. Employers have faced liability in similar situations for decades for the acts of their employees that occur during the course of the employment relationship. Consider the claims made against pizza delivery companies whose drivers were instructed to deliver a pizza in 30 minutes or less.  In the context of distracted driving, the price of vicarious liability can be significant.  In Florida, a lumber wholesaler settled for over $16 million after one of its salesman hit and severely disabled an elderly woman while talking on a cell phone.

Beyond potential OSHA administrative penalties and civil and criminal liability, employers should also consider how their policies and practices can affect their insurance rates. There is no question that with an increase in accidents caused by distracted employees, the cost of worker's compensation and other insurance coverage will rise.

Cell Phone Fires and Explosions

Modern cell phones use lithium-ion batteries, that in some cases, allegedly have caused fires and sparks while in stand-by or charging. Defective batteries allegedly have produced smoke and grounded a flight, ignited a car, and smoldered on a child's pillow.  A cell phone manufacturer has reported 35 cases of its devices' batteries burning or exploding while charging, and has issued a recall for millions of devices.  The Federal Aviation Administration has issued a warning about a particular model of personal device, telling passengers "not to turn on or charge these devices on board aircraft and not to stow them in any checked baggage."

Consequently, some cell phones may represent a recognized fire hazard at the workplace. As the Agency's understanding of the hazards develops, we anticipate that may OSHA address this issue under the General Duty Clause, citing employers who fail to protect employees from the recognized hazard of cell phone battery fires. Employees who work around flammable vapors or dust may face risks from fires and explosions.  It is a common practice at gasoline stations to have warnings that cell phones should not be used while fueling because of the potential for ignition of flammable gasoline vapors.  Employers must manage and limit the potential fire hazards posed by recalled cell phones in the workplace.

Conclusion

As OSHA's enforcement relating to inappropriate employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels. Employers may wish to look closely at their policies, procedures, and training systems to determines whether updates are appropriate to reduce potential individual civil and criminal liability of employees, as well as the vicarious liability to the employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.