Construction Law

Cell Phones and a New Era of Liability in Construction

As cell phone technology reaches new heights, construction companies must adopt new policies that address the way they take on projects and manage their workforces. As smartphones are here to stay, construction firms need to have mechanisms in place to ensure their workforces remain protected. Smartphones are a distraction that present safety risks to jobsites. Moreover, the unauthorized use of cell phones in the workplace can result in serious legal ramifications for companies that overlook their capabilities.

From safety initiatives to protecting confidential information, having smartphones on the jobsite is a serious issue, and policies should be put in place to protect the best interest of your business. In this editorial, a Nashville construction lawyer with Cotney Attorneys & Consultants will discuss a few ways construction sites can reduce liability by putting processes in place related to smartphones. Remember, if your business is facing a legal issue, partner with a team of Nashville construction attorneys experienced in construction litigation.

Cell Phone Use By the Numbers

According to Pew Research Center, 96 percent of Americans now own a cell phone with 81 percent owning a smartphone. In Pew’s last study conducted in 2011, only 35 percent of the individuals surveyed owned a smartphone. For many of these smartphone owners, the device has become their sole means of accessing web, email, and social media pages.

As construction businesses deal with a widening labor gap, consider the fact that the vast majority of young adults entering the workforce own a smartphone. In fact, according to the same study by Pew, 96 percent of young adults ranging from 18 to 29 own a smartphone. What’s truly surprising is the rapidly rising number of adults beyond the millennial age range that own smartphones, including:

92 percent of adults from the ages of 30 to 49
79 percent of adults from the ages of 50 to 64
53 percent of U.S. adults from the ages of 65 and up

Considering that the average construction worker is 41 years old, it’s safe to assume that at least 90 percent of the workers on a jobsite are smartphone owners. With the growing dependency workers of all ages have in their smartphone devices, this can present a variety of liability issues for construction businesses. Before a Nashville contractor lawyer breaks down the ways you can protect your business, lets review the Occupational Safety and Health Administration’s (OSHA) stance on smartphones.

OSHA’s Stance on Smartphone Technology

As the technology that encompases smartphones rapidly grows, you could easily say it’s outpacing the federal legislature that regulates this technology. As mobile phones offer construction workers endless entertainment options, such as wireless streaming of music, podcasts, and more, they present a great deal of liability to construction sites when they are in operation during working hours. Add on the fact that many young workers pair their smartphones with a set of headphones, and you can see why construction companies need to quickly update their employee manuals to account for these modern advancements and ensure their sites remain protected.

One of the main reasons why construction companies need to take action is because there are few OSHA regulations in place related to smartphone use on the jobsite. There is one OSHA policy for using a cell phone when operating cranes and derricks for construction; however, there are limited federal regulations set forth for smartphone use on the jobsite. Moreover, there are currently no federal provisions in place related to headphone use on a construction site. In other words, the true burden of smartphone use shifts to the employer to monitor these devices on the jobsite.

The Problems with Smartphones and Safety Practices

Allowing smartphone access on the jobsite raises a ton of red flags. Although you never want to flatout confiscate a worker’s smartphone, employers need to do their best to protect their workers. Here are a few things to consider related to cell phone use on the jobsite:

Safety Comes First: considering that texting and driving is considered more dangerous than drinking and driving, operating a smartphone on a hazardous jobsite presents undeniable risks. It’s best to prohibit cell phone use on jobsites entirely to ensure the safety of all your workers and bystanders.
Promoting Productivity: regardless of what your workers tell you, the act of staring down at your smartphone one hundred or more times a day doesn’t exactly promote productivity. Although cell phones can be useful tools for certain applications that help with performance on the jobsite, they’re generally a distraction that should only be utilized in emergency situations or during breaktime.
Away From the Jobsite: although the main focus is always on protecting workers on the jobsite, smartphones increase risks away from the jobsite too. Company vehicles traveling to and from jobsites should also be smartphone free as the possibility of having a work truck create a serious wreck because a worker was on their smartphone must be avoided at all costs.

Implementing Safety Practices for Smartphones

Between providing safety training courses and adding policies to your employee handbook, there are plenty of effective ways to integrate useful workplace changes related to cell phone use. Even more important, the act of turning off cell phones before entering the workspace needs to become part of your company’s culture.

Here is some more information from a Nashville construction law professional on how to effectively implement practices that promote safety on the jobsite:

Never Allow Equipment Operators to Use Phones: although we recommended above that you have a zero tolerance policy related to smartphones, we know that some construction employers will still allow them on the jobsite. These employers should at least be familiar with OSHA’s policy prohibiting certain heavy equipment operators from using their devices on the jobsite. At a minimum, jobsites must remain OSHA compliant and never allow equipment operators to use their phones while working.
Create the Right Culture: creating a culture that ensures everyone is on the same page about cell phone use doesn’t happen overnight. However, having signage around the site that states so and encouraging friendly reminders from key employees promotes a safe workplace. Moreover, letting your workers know that it’s alright to be on their phones during break times can help ensure everyone still gets access to smartphones when they need them.
Accommodate Workers to an Extent: although some workers may still want access to their phones on the worksite for a family emergency or another urgent reason, employers should stress to their workers that they should tell their loved ones about the dangers of answering a phone call while on a busy project site. Family members should have the company’s contact information, so an emergency can be relayed to the jobsite if needed.

Other Ways Smartphones Lead to Litigation

Although we stress the importance of safety on the jobsite related to smartphone use, we must also address the fact that unauthorized smartphone use can lead to a litany of legal issues. Here are a few things construction employers must consider beyond safety initiatives related to smartphone use:

Everyone has a Camera in Their Pocket

With 90 percent or more of your workers having the ability to capture video footage or take pictures in real time, confidential information is easily leaked in 2020. A disgruntled worker can snap a photo and report a potential hazard to OSHA or a worker could accidentally post a picture on social media of a worker missing a piece of personal protective equipment (PPE). Smartphones being utilized on the jobsite present a variety of unique liability issues. For this reason, many businesses are updating their handbook to include provisions prohibiting the use of any form of video or photography on the jobsite.

Confidential Information Can Be Breached

With easy access to smartphones, it’s all the easier for employees to share confidential information with their cell phone. Whether it’s a worker who doesn’t know the company policy prohibiting the sharing of private information over a text message or a disgruntled employee who is about to jump ship to a competitor, construction companies need to have a policy in place that clearly outlines the rules and restrictions related to sharing confidential information. Moreover, they need a process in place for recovering assets from the company cell phones of departing employees.

Visual Evidence Can Impact a Legal Dispute

Employers should also be mindful that text messages are now one of the most effective forms of visual evidence for litigation proceedings. For example, if one party admits some form of guilt through text message to another party in the middle of a dispute, this information may be used against them in future legal proceedings. Regardless of the type of dispute you’re dealing with, it’s best to only communicate with your Nashville contractor attorney during any stage of a legal proceeding.

As construction practices continue to evolve, so too will the resources utilized in the industry. Although smartphones provide amazing, groundbreaking applications that can positively impact construction businesses, they also present significant liability issues if a construction firm fails to address their risks.

At Cotney Attorneys & Consultants, we are a Nashville construction law firm that drafts handbook policies, reduces liability, and represents construction businesses in construction legal matters. To learn more about our services, including developing new policies for your company handbook, give us a call today.

If you would like to speak with our Nashville contractor attorneys, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.