presented by: managing your duty of care to your mobile employees: ensuring your employees’ safety...
TRANSCRIPT
Presented By:
Managing your duty of care to your mobile
employees: Ensuring your employees’ safety
and security and limiting your legal exposure
Kendall Kelly Hayden Esq., PartnerCozen O’Connor, P.C.
Sarah Walters Esq., General CounselDickey’s Barbecue Restaurants, Inc.
ALM In-House Legal Summit: March 27, 2014
Outline of Presentation• Providing mobile employees with safe
transportation• Tracking your mobile employees• Accessing your mobile employees’ texts and
emails• Understanding wage issues with respect to
mobile employees emailing and texting after hours
• Ensuring appropriate insurance is in place for mobile employees
Whatchu talkin’ bout Willis?
• Mobile employee
• Duty of care
• GPS tracking
• Ground transportation
Mobile Employee defined
Hybrid mobile worker
Constantly mobile worker
Occasionally mobile worker
Duty of care defined
Presumes that individuals and organizations have legal obligations to act toward others and the
public in a prudent and cautious manner to avoid the risk of reasonably foreseeable injury to others
GPS defined
Q. What is a “GPS?”
Ground transportation defined
Q. What obligation do I have to provide my mobile employees with safe and secure ground transportation?
Providing employees with safe transportation: stats
Driving can be the highest risk travel activity
US baseline: 12 / 15 (deaths per 100K people/per 100K cars)
UK: 4 / 7 Afghanistan: 39 / 1,400 Brazil: 20 / 70 Africa: many >30 / 6,000-14,000! Middle East: many >20 / 80-300
Transport Deaths*: 1 in 6,000Assault with Firearm: 1 in 25,000
Lightning: 1 in 5.5 millionBus: 1 in 13.5 million
Providing employees with safe transportation: case studies
Providing employees with safe transportation: statutes
• Statutory Duties– OSHA
•General duty clause•Emergency planning requirements
– Workers’ Compensation •No universal federal act or statute•Exclusions
– Exceptions
Providing employees with safe transportation: statutes - OSHA
• Statutory Duties– OSHA
•General duty clause•Emergency planning requirements
– Workers’ Compensation •No universal federal act or statute•Exclusions
– Exceptions
Providing employees with safe transportation: statutes - WC
• Statutory Duties– OSHA
•General duty clause•Emergency planning requirements
– Workers’ Compensation •No universal federal act or statute•Exclusions
– Exceptions
•Securely transport valuable human assets while
conducting business globally
•Vital part of security planning and risk
mitigation strategy
•Increases employee efficiency and productivity
•Satisfies duty of care for employees
Providing employees with safe transportation: benefits of secure ground transportation
13
• Transportation provider must be:– Professional
– Reliable
– Licensed
– Insured
• Should be known to client or to client’s trusted partner
• Transporter must be vetted– Investigation to confirm capabilities
– Multiple current professional references checked
• Copies of transporter’s professional liability insurance must be
on file
• A program for documenting and archiving transport vendor is
key to the ongoing vetting process
Providing employees with safe transportation:
selecting a secure ground transporter
14
• Increases transport team’s situational awareness
• Allows transport team to adjust level of traveler
protection
• Reduces risk and costs
• Identifies threats in the operational area
– Street crime
– Carjacking
– Kidnapping
– Traffic disruptions
– Weather
• Provides security team with information to avoid danger
and delay during transport operation
Providing employees with safe transportation: intelligence in ground transportation operations
15
• Chauffeured services in 67 countries around the globe
• Full service global chauffeured ground transportation (sedans, SUV, vans, limos, specialty vehicles, mini buses, and motor coaches)
• Small to large group meeting and event coordination
• Full service destination management
• Allows for integrated communications
– Between transport team, intelligence analysts,
protected traveler, and client
– Redundant communications modes (Mobile, SMS, E-
mail, Sat Phone)
• Leverages trained and experienced response coordinators
• Uses pre-defined emergency protocols
– Security and medical service providers are identified
in the protocols
– Contingencies defined before an emergency
transpires – not as it unfolds
– Reduces chances for human error
• Serves as focal point for communication and reporting
efforts
• Facilitates documentation of efforts and activities
Providing employees with safe transportation: 24x7 monitoring during ground transport
17
Providing employees with safe transportation: best practices
Standardize at highest levelAssess whether company is meeting duty of care obligationsFace and assess risks inherent in the job, site, and toolsEvaluate legal issues: statutes/common law/supranational law/choice of law/conflict of laws
Train and warn employees of dangerRecommend and require built-in, go-to reliable and qualified vendors Assume emergency preparedness efforts Vet policies from singular departmentEducate frequently Listen to employee concernsShow company’s commitment to security
Tracking your employees
Q. Can I track my mobile employees via GPS?
Tracking: Why?
• Increased efficiency
• Compliance with governmental regulations
• Compliance with company guidelines
• Compliance with safety laws
Tracking: How
• Placing GPS trackers inside of company-owned vehicles• Issuing company-owned smart-phones or other• Electronic devices with GPS tracking capabilities• Placing trackers on personally owned vehicles used in work-related activities*• Applications on smart-phones using GPS technology• “Swipe” cards
Tracking: Laws
• While there is no federal statute that directly regulates the use of GPS monitoring for private employees, a few states have adopted laws aimed directly at regulating the use of electronic tracking in general
• California• Connecticut• Delaware• Texas
Tracking: Statutory law in Connecticut
• Conn. Gen.Stat. § 31-48d
- Requires employers to give written notice of electronic monitoring to employees prior to the implementation of the monitoring.• Exceptions:
- Employers are exempt from the notice requirement when they fit two criteria:
1. An employer reasonably believes that an employee is engaging in conduct that (i) violates the law (ii) violates the employer or the other employees of the employer’s legal rights or (iii) creates a hostile workplace
AND
2. Electronic monitoring may produce evidence of one of the above beliefs.• Penalties:
- Civil fine
Tracking: Statutory law in California
• Cal. Penal Code § 637.7- Forbids the use of electronic tracking devices to determine the location of other individuals
• Exceptions:- Consent- Law enforcement
• Penalties:- Violation of Code Section is a misdemeanor- Violations by business and corporations can result in a revocation of business license
Tracking: Statutory Law in Delaware
• Del. Code Ann tit. 11 §1335(a)(8)- Forbids the installation of electronic tracking devices on the car of any other individual who is the owner, lessor or lessee of that vehicle without consent from the individual being tracked
• Exceptions:- Law enforcement- Parents
• Penalties:- Class A misdemeanor
Tracking: Statutory Law in Texas
• Tex. Penal Code Ann. §16.06- Forbids the placement of “electronic or mechanical tracking devices” on the vehicles of other individuals without consent.
• Exceptions:- Law enforcement- Licensed private investigators working with consent of the car owner- Good Samaritan Exception
• Penalties:- Class A misdemeanor
Tracking: Case Law
Tubbs v. Wynne Transport Service, Inc. (S.D. Tex.
2007)
Elgin v. St. Louis Coca-Cola Bottling Co.,
(E.D. Mo. 2005)
Cunningham v. NY Dep’t of Labor, (N.Y. App. Div.
2011)
U.S. v. Jones, (U.S. 2012)
Tracking: Best Practices
1. Familiarize yourself with applicable laws
2. Give notice
3. Limit use to a specific purpose
4. Focus ONLY on relevant information
Accessing your employees texts, IM’s, tweets, and e-mails
Q. As an employer, what are our rights to access our mobile employees' text messages?
Accessing your employees texts, IM’s, tweets, and e-mails: case studies
City of Ontario, California v. Quon,(U.S. 2010)
U.S. v. Ziegler,(9th Cir. 2007)
Convertino v. U.S. DOJ, (D.D.C. 2009).
Williams v. Poulos, (1st Cir. 1993)
U.S. v. Bailey,(D. Neb. 2003)
Accessing your employees texts, IM’s, tweets, and e-mails
•Does the company maintain a policy banning personal or other objectionable use?•Does the company monitor the use of the employee's computer or e-mail?•Do third parties have a right of access to the computer or e-mails?•Did the company notify the employee, or was the employee aware, of the use and monitoring policies?
Accessing your employees texts, IM’s, tweets, and e-mails: best practices
1. Adopt a policy concerning monitoring or interception of IM’s and texts.
2. Clearly notify employees and the monitoring is consistently implemented.
3. Post a screen banner that announces the policy each time the employee accesses IM’s or texts.
4. Engage in active and full communication with employees with respect to expectations of privacy and employee monitoring.
5. Understand the application and meaning of a reasonable expectation of privacy.
Understanding wage issues with respect to emailing and texting after hours
•
Q. What policies are permissible with email response time for mobile employees and what wage issues does this raise?
Understanding wage issues with respect to emailing and texting after hours: stats
• Percentage who work voluntary OT: 80%• Average daily OT: 1 hour• Number of workers who have checked email by
8 a.m.: nearly 7 in 10• Percent who check email at dinner table: 38%• Number saying they have "no choice" but to
work OT: Half
– Enterprise mobility firm Good Technology surveyed 1,000 U.S. workers and found:
Understanding wage issues with respect to emailing and texting after hours:
case studies
T Mobile (2009)
Allen v. City of Chicago Amerisave Mortgage
Understanding wage issues with respect to emailing and texting after hours: best
practices1. Institute policies and procedures in
writing and signed by the employee in order to avoid common problems associated with employees' working off-the-clock
2. Routinely and carefully audit employees' work schedules, reported meal periods, and overtime requests/approvals against computer logs and other electronic records
3. Take caution when including overly broad language in a BYOD policy that could be interpreted as chilling workers' rights under the National Labor Relations Act to discuss the terms and conditions of their employment
Ensuring appropriate insurance is in place for mobile employees
Q. Can I require my employee to designate their personal auto insurance as primary, then reimburse them for accidents?
Ensuring appropriate insurance is in place for mobile employees: best practices
1. Require employees to carry more than the minimum limits on their auto policies if they are using their own cars.
2. Determine how often the employees drive for work, their driving record
3. Consider an ENOL policy
Contact Information
Kendall Kelly HaydenCozen O’Connor214-462-3072
Sarah WaltersDickey’s Barbecue Restaurants
Contact information