On a clear day in September 2005, Don Svec was driving a van for his employer, family-owned electrical company Berry Electric Contracting Co. He was lost on his way to a delivery in a Chicago suburb when witnesses say he zoomed through a red light and smashed into a Saturn driven by 70-year-old Dorothy Barnes.
Barnes underwent five surgeries to repair injuries to her neck and pelvis. More than a year later, Barnes still suffers from vision problems and limited mobility in her neck and has a piece of metal sticking out of her pelvis to hold it together.
"Tell the employees what the rule is and monitor their compliance with it," says Harriet Lipkin, a partner at DLA Piper. "If they ignore the rule and its compensable time, you have to pay, but you can discipline an employee for repeated failure to comply with the policy."
Further, many companies have non-exempt employees with PDAs that they don't even know about. In recent years, many employers have proactively reclassified broad categories of workers as non-exempt--and those employees still have their BlackBerrys.
While the mere existence of a policy will not completely exculpate the company, it will diffuse any argument that it hasn't done enough to stop improper PDA use. And as with any employer policy, the more seriously it takes enforcement and training, the better chance it has of staying out of trouble.
"If you disseminate the policy, hold training sessions and discuss it with your employees," Lipkin says, "the judge or jury will recognize that you've got an employee violating the rule."