A real headache for employers

In the last week, newspapers have reported the RCMP have launched a crackdown on drivers operating cellular telephones, and that a Toronto bus driver was allegedly caught texting while behind the wheel of a moving bus.

In the last week, newspapers have reported the RCMP have launched a crackdown on drivers operating cellular telephones, and that a Toronto bus driver was allegedly caught texting while behind the wheel of a moving bus.

Surely, for all employers (and especially those whose employees operate any kind of equipment), the issue of electronic distractions from work duties is significant.

The efforts of the RCMP support recently-implemented laws banning the use of handheld electronic devices, such as for calling and texting, while driving. Statistics cited in news reports indicate there were 104 “distracted driving fatalities” in B.C. in 2010.

The efforts of police seem aimed at emphasizing that a driver’s focus needs to be on the road, not on his or her friend’s latest Facebook photo. As the police say, the challenges of operating a vehicle are substantial enough without adding these electronic distractions.

In Toronto, a passenger allegedly snapped a photo of the driver texting while operating a moving bus with about 30 people on board. No decision has been made yet about the specific disciplinary measures the driver will face.

A couple of years ago, the U.S. National Transportation Safety Board reported that, at the time of a recent mid-air collision between an airplane and a helicopter, the air traffic controller was making a personal telephone call.

The crash killed nine people and is an example of what can happen when an employee is distracted by a call rather than focused on work duties.

Employers have long fought the battle to keep employees’ attention on work rather than on their personal affairs. Their refrain has been that “paid time is our time”.

As cellular and digital technology evolves ever more rapidly, however, many people are carrying their own devices to work.

It’s no longer just simple telephone calls—voice messages, texting, internet access, and a whole range of phone-based “apps” are a distraction for employees and a headache for employers. Can the employer simply ban non work-related telephone activity in the workplace?

While such a drastic measure may be called for in safety-sensitive circumstances, I recommend a dose of reason when developing a solution.

There can be little doubt the employer has the right to restrict employees’ use of telephones, blackberries, etc. while on duty. Much of the technology may be new but the employer’s entitlement to demand its employees focus on their work is not.

The first step towards regulation is the implementation of a workplace policy emphasizing employees’ duty to be attending to their work obligations while on company time. It should clearly state that the use of telephones, blackberries, etc. for personal purposes is prohibited during working hours and provide a clear warning of disciplinary measures if employees violate the rules.

The dose of reason comes at the enforcement stage. Employers must realize that employees will always have a need to deal with some personal matters while at work.

It may not be reasonable, for instance, to prevent employees from receiving emergency calls from family members.

Employers probably should not start imposing disciplinary measures at the first glimpse of a cellular telephone or an overheard personal call.

But, verbal and written warnings should be issued and the employer should be prepared to move to more severe measures if the conduct continues.

When the misuse of these devices occurs in a safety-sensitive context, the employer should move quickly to more significant disciplinary measures. Operating a company vehicle, for instance, not only places the operator and the public in danger, it creates a significant risk of liability for the employer.

The objective is to impose rules which are effective and reasonable and appropriate to the work context. And the time to implement a solution is now, not later.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This column is not intended to serve as legal advice.

www.smithsonlaw.ca

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