By: Melanie M. Dunajeski, Drewry Simmons Vornehm, LLP
Remember Pokemon? People of a certain age remember buying their children overpriced decks of “Pokemon” cards featuring imaginary creatures with magical powers that the players (generally 7-year-old boys at that time) could pit against one another in a card game duel. It spawned an equally insipid cartoon series based on the same premise. Fast forward 20 years, put a smart phone in the hand of all those superannuated schoolboys (and every other addictive personality in the known universe), crank up an augmented reality “app” that permits users to competitively hunt for these same imaginary creatures, but this time make it so they are hunted through the live video and a data-streaming feature of the smart phone, and voila – you have Pokemon Go.
So what’s wrong with this picture for employers? What kind of liability could this possibly mean for employers? Plenty. The first week this app was available, my associate and I sat in the front window of a local diner having dollar tacos, and observed at least 35 people walking past playing this game – some stepping out into heavy oncoming traffic on the adjacent State Road. Later that week, we observed “hunters” skateboarding, bicycling and driving cars while engaged in the activity. Safety is clearly an issue.
Employers have reported employees wandering about their workplaces, phones on video mode and even leaving the workplace via safety or fire doors to search for more action outside. One employer posted a sign reading “FOR CRYING OUT LOUD. If you leave this building to catch a Pokemon, You Will Be Terminated!” The employer’s sign continues “I am ashamed for the entire human race for even having to write this note.” Productivity is an issue for any employer who has a Pokemon “trainer” on staff.
Furthermore, a “hunter’s” phone has to be open and on video mode to play the game. Setting aside all notions that employees should be working while they are at work (novel, right?), almost any workplace will have documents or other information that is visible on the open camera that is confidential or proprietary in nature – to say nothing of personal information of your clients that is likely protected by state and federal law. Privacy and confidentiality are issues.
Now imagine 15 people all piling on your office Wifi to play, with all their cell phones engaged (can a client reach them? – not likely) and you have a drain on your resources that cannot be sustained. They may also have opened a digital door into your computer system through granting permissions or giving email addresses when they downloaded the app that could make your data vulnerable.
What is an employer to do? First, enforce your existing policies. Employers are already finding that employees who NEVER had any productivity or attendance issues are having uncharacteristic issues. While you may be reluctant to issue discipline or counseling to these people, keep in mind that you must apply your policies and procedures uniformly in order to gain any protection from them in litigation that may ensue.
Second, it’s time to look at your policies and update as necessary. Pokemon is an addictive and time-consuming game, and with its success we are guaranteed a rash of similar products to tempt employees. Revisit your internet use policy and your BYOD (bring your own device) policies. Forbid the playing of computer or phone games while at work. Create and enforce a “limited personal use” policy for employer supplied smart phones. If you provide the employee with a cellphone, control the purchase or downloading of outside applications to the phone. Implement a distracted driving policy. Monitor for extended breaks and other attendance issues, as well as unusual delays in completion of assigned tasks or ordinary duties.
Thirdly, remind employees of your policies; and if new policies are introduced, make sure they are aware that these policies will be enforced.