As cell phones become increasingly ubiquitous, employers likely have experienced both positive and negative effects of employees' ability to remain constantly connected. In many fields, business is conducted regularly through cell phones, and employers may benefit from their employees' ability to access e-mail and digital information remotely and to remain available to communicate 24/7.

On the other hand, employee access to cell phones, including text messaging and social media, during work hours might present distractions that employers want to eliminate by restricting or fully prohibiting cell phone access. Generally, employers legally can regulate employees' use of cell phones during times the employees are supposed to be working, but they should do so through well-drafted employment policies that are enforced uniformly and consistent with employees' rights. 

A policy containing a blanket prohibition of the use of cell phones during office hours or that requires employees to turn over their cell phones for the entire work day is likely unlawful, and probably would have a negative impact on employee morale. The National Labor Relations Board (NLRB), the government agency that interprets and enforces the National Labor Relations Act (NLRA), has taken the position that employees have a right to use personal phones during non-working times, based on a section of the NLRA that gives employees the right to communicate through non-employer monitored channels regarding concerns such as working conditions during break periods. This is true even if an employer's workers are not unionized, as the NLRA covers private sector employees at both union and non-union workplaces.

In light of the NLRA and other considerations, an employer who wants to implement an effective cell phone policy should consider the following:

  • The NLRB has interpreted the phrase "working hours" to include non-work time during breaks. Therefore, a policy banning cell phone use or allowing the employer to confiscate cell phones during all working hours is likely a violation of the NLRA. Policies should ban or regulate cell phone use only during employees' actual work time, and employees should be allowed to use their cell phones during breaks.
  • Policies should be tailored to take into consideration factors that are specific to a particular field or employer. For example, employers in the health care industry should consider patient privacy and compliance with HIPAA in connection with employees' cell phone use in the workplace, while employers who employ drivers or others in safety-sensitive positions should consider how to avoid potential hazards that may be caused by inappropriate cell phone use.
  • Cell phone policies should be applied and enforced consistently. An employer should consider how it will monitor employee compliance with the policy, and how it will handle policy violations to ensure employees are not treated differently based on race, sex or any other protected class (even unintentionally).

Although employers have legitimate interests in preventing distractions, lost time and lost productivity due to their employees' personal use of cell phones, it is critical for them to ensure that any cell phone policies are well-drafted and consistent with applicable laws.

Originally published by Orlando Business Journal.

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