Читать книгу Employment Law Update - Jonathan Ingber - Страница 38

As we know, the explosive popularity of smartphones and cell phones, tablets, and laptops in recent years has delivered enormous benefits to users, as has the wide availability of these and other GPS-equipped devices. It is a rarity to meet someone who doesn't carry at least one of these devices, and many folks carry two or three. However, our ever-connected world comes at a price. When does the workday end? Is it reasonable to expect an employee to be on call 24 hours a day? If not, how accessible should the employee be? And then there is the ownership issue: who owns the data that is transmitted on a smartphone? Does it depend on whether the company or employee purchased the phone? What if the company pays the monthly bill for service? Does the employee have any privacy rights to communications on these devices? What about when the device's location is revealed by GPS?

Smartphones and cell phones come with their own separate set of issues, for example, use while driving. Employers have used a variety of strategies when addressing this issue. Some have adopted the so-called Nancy Reagan approach (“just say no”), even as others have adopted policies permitting hands-free use of the phone while driving. The underlying issue is extremely important because the National Safety Council reported that, in 2016, more than 40,000 traffic fatalities occurred in the United States for the first time in 10 years. The National Safety Council also reported a 6% increase in auto crash deaths in 2016 compared with 2015. Distracted driving, including cell phone use and texting, accounted for 3,477 fatalities and 391,000 injuries in 2015 motor vehicle crashes, according to the National Highway Traffic Safety Administration. Some reports have asserted that these statistics materially underreport the incidence of distracted driving. But if an employer adopts a “no cell phone use while driving” policy, what happens if the CEO is in an accident while talking on a cell phone? Is such a policy an invitation to employees to simply ignore it?

Devices, like social media, present privacy, ownership, and responsibility issues for employers and employees that are not easily resolved. And as new technologies are introduced, these are unlikely to resolve controversies now underway in suits and EEOC proceedings — at least until self-driving cars become as common as today's smartphones.