The workplace no longer has borders. The ubiquity of Personal Digital Assistants (“PDAs”), such as Blackberries, have made employees accessible anytime and everywhere that they may be.

But few employers, thrilled with their employees’ newfound, “round the clock” availability and heightened productivity, have considered their new liabilities.

Employees use PDAs while driving, walking on the street, at restaurants, bars, and even at the gym. They often don’t know who is listening or peering over their shoulders. Their employers should be concerned! They are ultimately responsible for their employees’ work actions. Any leaks of information can expose them to liability for a multitude of infractions. Betraying a client’s confidentiality, violating privacy rights, even damaging misstatements or defamation can easily result from a PDA “slip.” Employers will be making large payouts as result of those indiscretions.

Some employees feel the irresistible urge to immediately respond to the beep of a pending message. Hence, the reference to “CrackBerrys.” Common sense seldom prevails for some employees who abandon all discretion with their newfound toy. They use their PDAs to respond to work e-mails while driving. It will not be long before the first million-dollar damage award against an employer from another driver or pedestrian injured by one of their e-mailing employees occurs.

With PDAs, employees feel pressured to respond instantly. This is when mistakes occur. Often, when the message comes in, their minds are far from the job. They could be in a fight with their spouse or [feeling less inhibited] at a dinner party. They may have just been complaining about their boss to their friends. Their minds and emotions may not be appropriately constituted to provide critical information to their employer, customer or work colleague.

Not being in their office, with access to files and co-workers, there is also a likelihood of overlooking important issues necessary to provide the information sought. If their advice is incomplete or negligent, employers are liable for the work product.

The same rules for office communications apply to PDAs. But because of the speed of PDA communications, the language tends to be less formal and professional. Spelling mistakes are easily made while fervently typing on the tiny keyboard. Also, there is an increased risk of copying an e-mail to the wrong person.

Employers should reinforce that office rules for e-mail and internet use apply to PDAs. The PDA is the employer’s property. Employees should not expect them to be private. If any personal use is permitted, it should be limited. Employees should never e-mail inappropriate jokes or access pornographic websites. These rules are necessary to minimize an employer’s exposure to discrimination or sexual harassment complaints.

This is not a call to prohibit PDAs. They provide the flexibility and accessibility requisite to achieving the work-life balance that many employees crave. But while PDA use is rampant in the workplace, few employers have thought about its management. The following guidelines will assist employers:

  • Remind employees that the same rules that apply to the use of office telephones, computers and the Internet, also apply to PDAs. Any workplace policies should be revised to reference PDAs. Permitted and prohibited uses should be defined. Also, any policies should clearly state that employers have the right to access and inspect employees’ e-mails and Internet use.
  • All telephone and e-mail communications are confidential. Employees should be reminded to exercise discretion when using PDAs away from the office. Any e-mail communications sent from a PDA should have a tag line that identifies the communication as such. 
  • PDA passwords should be activated. Also, it should be turned off when not in use. This will prevent unauthorized use or improper viewing of important confidential business information.
  • Establish a protocol for PDA “etiquette.” For example, during meetings, clients deserve the employee’s undivided attention and PDAs should be turned off.
  • Your policy should require that PDAs not be used when the employee is driving. That will minimize the risk that the employer will be found to have been negligent if there is a PDA-induced accident.

PDAs are an example of employers and their law firms developing solutions to the problems of the past while blithely ignoring new risks. For reasons… difficult to understand, few have yet addressed these issues [and must do so].