We’ve all seen the driver behind the wheel talking on his cell phone and weaving across lanes, making turns without signals, and all sorts of other dangerous maneuvers. One cannot talk on one’s cell phone and hope to really concentrate on other tasks. But what about the employee in the workplace who always appears to be reading something or texting from their personal phone, when they really should be engaged in productive work? Employers certainly have the ability to limit the use of cell phones in the workplace. However, recent guidance from the NLRB does put some limits on an employer’s ability to do so.
The Board recently reviewed one employer’s policy limiting the use of cell phones in the workplace, which stated that personal cell phones could only be used for “work-related or critical, quality of life activities only.” The employer defined “quality of life activities” as including “communicating with service or health professionals who cannot be reached during a break or after business hours.” The policy also had an absolute prohibition on text messaging and digital photography during working hours.
According to the NLRB, this policy was unlawful because it prohibited the use of personal cell phones at all times when the employee was at the worksite. This guidance shows the need to be careful with how a policy is written to ensure compliance with the National Labor Relations Act. Recall that in the labor law world, “working hours” includes all of the time an employee is at the worksite including break times. The phrase “work time” refers to when an employee is actually doing his or her job. Thus, in many contexts, the NLRB will find rules that prohibit employees from communicating with other employees during “working hours” unlawful.
The bottom line is that an employer can limit the use of cell phones by employees when those employees are actually performing their work, whether it is when the employee is driving a forklift and phone use could endanger the employee or his coworkers, or simply when the employee is expected to be working (e.g., working with customers or preparing reports), even if there is no real hazard caused by the employee’s telephone use. On the other hand, an employer cannot prevent an employee from using their cell phone during breaks or other non-working times. As with many circumstances, drafting a policy related to limits on use of cell phones by employees requires careful thought.