“Risks and Rewards of a BYOD Workplace” was the subject of one of my presentations at our annual employment-law seminar last week. [FN1] More and more employers are adopting BYOD policies. BYOD, which stands for “Bring Your Own Device,” eliminates the need for employers to give employees a smartphone or tablet for work-related purposes. Instead, the employee brings his or her own device and uses it for both work and personal purposes. The State of Delaware was an early adopter in the BYOD arena.
Although BYOD policies are popular, they are not risk free. One (of the many) dangers of employee use of mobile technology is the potential for distracted driving. Regardless of who owns the device, employers may face liability for an employee who harms a third party due to the employee’s negligent use of a smartphone while driving.
Many cities and municipalities now prohibit drivers from operating a vehicle and using a cellphone unless they use hands-free device. Although this is a great start, it may not be enough to prevent liability for employers. The U.S. Department of Labor, for example, takes a very firm stance on this issue, stating:
Employers have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.
I’m not entirely sure that I would agree with this statement—I don’t know of any “legal obligation” to have a distracted-driving policy. But I do think that employers should have a distracted-driving policy.
The good news is that the federal government has provided a sample distracted-driving policy for employers to use. The policy is short and to the point and it makes clear that employees are prohibited from using a hand-held cellphone or smartphone while operating a vehicle.
If you don’t have a distracted-driving policy, consider whether this sample policy, provided by the National Highway Safety Transportation Administration, isn’t worth implementing. Even if it’s just a starting point, employers are well advised to have something in place to prevent employees from endangering themselves or others while operating a vehicle. The NHSTA offers additional resources to employers who want to take further steps to prevent distracted driving by employers.
And, remember, just because it’s the employee’s own device does not mean that the employer won’t be held liable. A BYOD workplace is not a defense to a claim of negligence for harm caused by an employee in the course and scope of his or her employment.
[FN1] Thank you to everyone who attended—it’s always great to see clients and friends in a context that does not involve pending or threatened litigation.