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Your employees’ cell phone use might take you out of labor law compliance


Although smart phones have improved customer service and elevated employee efficiencies, they have also increased distractions in the workplace and potential legal risks to employers for employee acts.  A skillfully constructed and executed cell phone usage policy will not only set expectations for incoming employees, it will also address serious issues concerning the safety, security, and privacy of cell phone use in the workplace. Inside Counsel, Kathryn Willis & Matthew T. Scully explain why employers should be vigilant with their policies.

Tomorrow your employee can use his cell-phone to work-off-the-clock in violation of the Fair Labor Standards Act, send inappropriate texts to a coworker in violation of your company’s sexual harassment policy, post comments on social media criticizing your company—and even you—in a way that is protected under the National Labor Relations Act (NLRA), download an email containing confidential company information to his personal account and lawfully record (unbeknownst to you) work conversations all before lunch. Employees’ cell phones are an indispensable part of their daily lives, even their work, but most employers fail to appreciate the inherent employment risks that cell phones create. This article identifies some of the legal issues arising from the use of cell phones at work, and best practices on how to address them.

Wage and hour claims.

Remember the 9 to 5 workday? Probably not. Today’s workplace is always connected. This matters because the Fair Labor Standards Act (FLSA) and many state laws, require that employers pay non-exempt employees a minimum wage for all time worked, and overtime for hours worked over 40 hours in a workweek.

If your nonexempt employees work outside of normal work hours—for example, checking and responding to emails, handling work calls, etc.—they may be owed compensation for that time. If you have non-exempt employees who are always connected, take these four steps: (1) define company objectives on working outside of work hours (prohibit? restrict access? how will time be kept? etc.); (2) draft effective policies and train employees, particularly supervisors because they are often the ones contacting employees after hours; (3) enforce policies and discipline employees and supervisors violating your policies on after-hours work; and (4) require reporting of time spent on devices and compensate employees for all compensable time.

Harassment and discrimination claims.

Cell phones are a ticking time bomb for harassment and discrimination claims. The built-in camera, video recorder and audio recorder that most cell phones contain can be used for devious endeavors at work. Inappropriate electronic communications can occur anywhere and at any time.

Worse yet, an undisputable record of the inappropriate conduct now exists; a graphic picture cannot be disputed. What is an employer to do? To start, implement and enforce a strong harassment policy covering electronic devices and activities outside of work, including those on social media. Second, consider banning cell phones in work areas because employees should be working—not playing on their cell phone—during that time. Third, ensure that you consider emails/text messages as part of any workplace investigation, and draft policies that mandate employees cooperate with workplace investigations.

Thus, if an employee refuses to provide text messages as part of an investigation, or deletes incriminating messages, you can discipline them, up to termination. Lastly, consider implementing policies that permit your company to monitor employees’ cell phone usage. While care must be taken in this area of law, when done properly, employers have a right to review employees’ cell phone activity, including text messages, emails, downloads, etc.

Violations of the National Labor Relations Act (NLRA).  

“I thought the NLRA related to unions?” It does, but it also covers nonunion employers and likely applies to your company. What do you need to know? Think twice before disciplining an employee for a social media post; posts relating to an employee’s terms and conditions of employment and are concerted (for the benefit of more than one employee) may be considered “protected” activity for which you cannot retaliate. Further, the NLRA, enacted over 80 years ago, has now been interpreted to permit non-supervisor employees to use their cell phones at work. What this means is that employees, under certain circumstances, can record conversations and videos at work. Review your policies and consult with legal counsel for the best practices.

Misappropriate of trade secrets.  

In minutes, a disgruntled employee can transfer your company’s confidential information—client lists, business emails, marketing strategies, account information, etc.—to his personal account for the purpose of later using that information to compete against your company. This scenario has become an all too frequent occurrence in today’s workplace. While it is difficult to completely stop an employee intent on stealing your confidential information, the following steps will help.

First, ensure that all employees have valid restrictive covenants (that comply with applicable state law) because such covenants will provide the company recourse if a departed employee competes against you.  Second, implement security protocols and limit server access. Take steps to protect your confidential information, such as implementing passwords, firewalls and encryption software, marking important documents confidential, and restricting information access to those employees who need to know. Third, maintain clear policies that departing employees must follow, including a requirement that employees return all company equipment and property. Fourth, review a departing employee’s equipment and emails to determine if he has taken inappropriate actions. Lastly, immediately restrict a departing employee’s access to your company’s network, applications, email accounts and physical files.

Liability for employee negligence.  

Simply put, texting on the job poses a safety hazard. For example, texting while driving a vehicle or operating heavy machinery should never happen. Not only does such conduct create safety and health risks for your workers, but the company can be liable for employee accidents that occur while they are distracted by texting. Carefully evaluate all of your employees’ job responsibilities to determine where texting might constitute a safety hazard and what steps should be taken to remediate the hazard, including, but not limited to, policies and follow-up disciplinary action.

Employers will continually be challenged with the legal risks inherent from employees bringing their electronic devices to work. Hopefully, it is apparent from this article that the most critical step a company can take is to draft clear and uniformly enforced policies that address the varied legal risks. However, simply drafting policies is not enough. This area of the law is in a constant state of development and every prudent employer must remain diligent in monitoring changes. Otherwise, your policies will soon become as outdated as your original iPhone.