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Employer Blog

Can and Should You Ban Employee Phone Use at Work?

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Can and should you ban cell phones at work?
An employer can prohibit its employees from accessing devices while working, unless that denial infringes on their right to engage in protected concerted activity under the National Labor Relations Act.
So what cell phone policies does the NLRB consider illegal?
“No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any employee or employer operation.” (because it would prohibit employees from recording protected activities such as safety violations, unlawful harassment, or employee protests)
“Employees are prohibited from wearing cell phones, making personal calls or viewing or sending texts while on duty.” (because employees might interpret “on duty” as including breaks and meals)
What does the NLRB instead recommend?
“Because of the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment/discrimination policy), and protection of confidential and proprietary information, employees may not take, distribute, or post pictures, videos, or audio recordings while on working time. Employees also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.” 
“Employees are prohibited from wearing cell phones, making personal calls, or viewing or sending texts during actual working time.”
Nevertheless can does not always mean should.
If your employees’ work is safety sensitive, then the answers is a clear yes. It’s simply too dangerous, and you take too much risk, if those employees are distracted by an incoming text message, call, Instsa-Snap, or whatever. They need to be as focused as possible. So for them, no phones, period.
What about everyone else? Here’s where I give you big ol’ lawyery “It depends.”
While you should expect your employees to give you their undivided attention while they are “on the clock,” we also expect a lot more from today’s employees than the traditional 9-to-5. If my employee, who is giving up nights and weekends for me, wants to spends a few minutes during the workday posting to Facebook, or checking the score of last night’s game, or texting his kids to make sure they got home safely from school, I don’t care. That is, I don’t care unless and until it reaches the level of distraction and impacts performance. Then, you should absolutely treat the performance problem like you would any other. I am not, however, a fan of treating a performance problem with a technology band-aid.
Might your employees take advantage or waste some time? Maybe (likely). But, how much wasted work-time is too much? To me, the answer is only when it hinders performance. 
My bottom line? Consider this policy: “Employees should keep personal cell phone use to a reasonable limit while working. Your manager or supervisor will determine what is, or is not, reasonable.” Thus, employees keep their phones, and you keep the discretion to take them away if abused. 


Originally Published: https://www.ohioemployerlawblog.com/2018/06/can-and-should-you-ban-employee-phone.html


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