Not a Laughing Matter

We all know how dangerous it is to text while driving.  In fact, texting while walking can be dangerous as Cathy Cruz Marrero proved in January when she became a YouTube sensation by falling into a mall fountain while texting.  If Ms. Marrero’s phone had been company-issued could her employer take a bath as well?

In a recent Insurance Journal article, author Andrew G. Simpson examines the newly mobile workplace.  Here he suggests that work can happen virtually anywhere in the world at any time of the day or night, and that this is a relatively new phenomenon.  This article cites research that the choice to work outside of the physical office is largely self-imposed with little evidence that management requires a mobile environment.  It is easy to imagine employers named in a myriad of lawsuits where employees are involved in accidents or questionable behavior while attending to work-related activities and/or using equipment issued by their employer.  These cases are coming, and employers can begin to protect themselves in anticipation.

Michael Liebowitz, New York University’s director of risk management and insurance, suggests employers draft contracts with employees to define rules of usage associated with company issued electronic devices and defining risks and responsibilities. HR and employment lawyers need to be engaged in this process and ramifications must be firm. Maureen McCarthy, manager of Workers’ Compensation and Managed Care for Liberty Mutual makes the comparison between off-site after-hours mobile device liabilities to incidents occurring during after-work gatherings involving alcohol.

Cathy Cruz Marrero is among the first to stick her toe in the water, bringing a lawsuit against the mall for failing to install a railing around the fountain to protect texters and against the security guards who were heard laughing on the recording that went viral. 

What do you think? What should be defined as “work?” How can employers reduce their exposure to these new workers’ compensation risks? Let us know.