Smartphones provide major benefits for your fleet (convenience, seamless communication between you and your team, useful apps) but, also, additional legal risks. In order to protect your fleet, it’s crucial to be aware of these risks and prepare for them.
In this post, we will outline legal considerations for adopting fleet cell phone plans and walk you through how you can minimize risk. These, of course, are suggestions and we recommend consulting an attorney before implementing phone plans.
In cell phone related vehicle accidents, employers—such as yourself—are often considered to be at fault. Companies are considered negligent for encouraging or allowing employees to use cell phones for work without providing training or explaining the safety risks.
Businesses are liable for accidents caused by employee cell phone use when:
- It’s a company provided cell phone
- It’s necessary or encouraged to use a cell phone on the job
- The company owns the vehicle involved in the accident
- The accident occurs during a business related trip or business related call even in a personal vehicle or while using a personal cell phone
Emphasizing the dangers of behind-the-wheel cell phone use is essential for both driver safety and a company’s bottom line.
If you’ve read our blog posts outlining cell phone programs and comparing Bring Your Own Device (BYOD) with Corporate Owned, Personally Enabled (COPE), you likely have an idea of which business phone program fits your fleet best.
No matter the cell phone plan you’re leaning toward, there are some legal considerations you should be aware of first.
Personal phone use and storage
If you decide to purchase company phones, it’s important to be clear about how employees use these devices. Will you allow drivers to use the devices for personal calls, messages and personal data storage?
Companies that prohibit personal use of company phones should create a written policy outlining how employees can and cannot use the device. The more specific you can be, the better.
If you do permit personal use, you should also create a written policy outlining what types of personal behavior are allowed and disallowed. While it may seem obvious, be sure to explicitly prohibit all illegal activities or you can be held liable.
The policy should also outline company procedures if employees exceed data useage or minutes limitations. Would you or the employee be responsible to cover these costs?
Keep in mind it can be tedious to calculate the amount of minutes used for business versus personal reasons and near impossible to do the same for data use.
Questions of ownership come into play when there is a mix of company and personal information and devices—particularly around data and phone numbers.
Who owns the data when employees store a mixture of personal and company data on the devices? If necessary, can the company access the information or wipe the phone?
When it comes to company-owned phones, typically the answer is that the data belongs to the company and can be accessed or wiped. It’s important, however, to not overextend your reach. In other words, avoid accessing personal data as much as possible. Also, make sure you're aware of any local legal regulations around data access and ownership, as these vary from state to state.
Ownership gets trickier when considering personally owned phones in BYOD scenarios. In the 2013 case Rajaee v. Design Tech Homes, LTD, Saman Rajaee sued his former employer Design Tech Homes, LTD for wiping personal and work-related data from his personal smartphone. The federal court ruled that the company was not liable.
There aren’t explicit laws or regulations prohibiting companies from accessing data on personal devices at the moment. As cell phones become more integrated into daily business operations, however, there will likely be more laws and regulations addressing this issue.
As a result, your safest bet is to require employees to sign a policy permitting your company to wipe employee phones or access information on their personal device when necessary. This clearly informs employees what to expect, and can help prevent employee outrage and potential legal battles.
When an employee departs from the company, another debate that may arise is who owns the phone number?
This comes down to one thing—the person who receives the cell phone bill, owns the phone number. In other words, whoever can cancel or forward the phone number, owns it.
So, say your company receives the monthly phone bill, then whenever the employee departs from the company, you will keep the phone number. Of course, if the employee receives the monthly bill, the company will lose the number when they leave.
So in the case of BYOD or reimbursements, be prepared to change contact numbers as employees depart. Either way, clearly communicate phone number ownership to employees from the start.
When it comes to our cell phone, for most of us, it’s like a third arm. Cell phones are almost always by our side. But, when it comes to business, sometimes this can work against you.
Without a distinction between work and personal time, employees may check work emails and take calls outside of business hours. As a result, you may find yourself paying overtime in compliance with the Fair Labor Standards Act.
To cover your bases, create a written policy that sets boundaries between when non-exempt employees should and should not be available on their cell.
One reason you may be considering purchasing cell phone plans is to use a smartphone tracking app to monitor employee driving behavior.
Tracking your drivers’ behaviors on company-owned cell phones is typically permissible. But, it’s more of a legal gray area when tracking employees using their personal cell phones. First, check state laws and regulations to see if it’s prohibited.
If it’s legally permitted, best practice when tracking employees is to create a written policy that:
- Informs employees they are being tracked and why
- Outlines specifically when they will be tracked
- Explains how the data will be used and protected
- Clarifies consequences if employees disable the app without permission
Be sure to have employees sign the policy to show they understand and accept the terms. Once you receive employee consent, remain respectful and only track employees to the extent that is justifiable as business need.
Although the science is inconclusive and contradictory, companies are facing health claims from employees for using their cell phones. To avoid these claims, inform employees of the potential health risks associated with cell phone use and suggest or require using a hands-free device.
In summary, before implementing company cell phones, it’s best to be transparent with employees. Create clear, written policies that explain how their cell phones will be used, monitored and handled in various situations.
To learn about what else to consider when adopting employee smartphones, download our free Driver Cell Phone Plans and Policies White Paper. To begin tracking driver location and behavior via smartphone, check out Fleetio Drive.