Cell phones create workplace challenges

Cell phones at work are a growing concern. On one hand, many employees believe they have an inalienable right to have personal cell phones on and ready to be answered at all times, regardless of the workload. On the other, employers have a number of legitimate concerns about these devices, including loss of productivity, potential employer liability for traffic accidents caused by employees talking on cell phones while making job-related calls, invasion of co-workers’ privacy by taking inappropriate photos with camera phones, and transmission of images of new products, trade secrets or other sensitive information.

The flexible approach

First and foremost, there is nothing in any federal or state law forcing employers to allow employees to bring personal cell phones onto company premises at any time. Many employers flatly ban personal cell phones in the workplace and require employees to leave their phones in their vehicles and make personal calls during authorized breaks or lunch hours only. That’s a perfectly permissible, legal position for an employer to take.

But if you don’t want to issue a flat prohibition on personal cell phones at work (or don’t do so until an employee flagrantly violates whatever reasonable company policy you decide to adopt), you have the flexibility to approach this issue in a number of ways and impose some common-sense policies.

Companies have taken a number of steps to prevent inappropriate cell phone use -- especially the use of camera phones -- thereby protecting their own proprietary interests and the confidentiality and privacy concerns of their workers. Some employers have addressed the issue by:

* Requiring employees to leave cell phones at their desks or in their purses during work hours or when attending company meetings or seeing clients or vendors, and allowing all calls to go to voice mail. Calls may be returned at breaks and on lunch hours.

* Allowing employees to carry cell phones in vibrate mode in case an emergency arises that needs immediate attention.

* Prohibiting employees and visitors from bringing camera phones into any company building.

* Prohibiting camera phones in all product-development areas.

* Limiting company-provided cell phones to those that do not have photographic capability.

* Allowing employees to bring camera phones to work, but strictly prohibiting taking photos with them.

* Prohibiting the use of camera phones in all areas of the business from which traditional cameras are prohibited.

* Prohibiting the use of camera phones in all areas where co-workers have a reasonable expectation of privacy such as company restrooms or locker rooms.

Cell phones and driving

Just as in the case of alcohol served at company functions, employers may be held liable for accidents caused by employees while they’re on the job. And because of the availability of cell phone records, it may not be difficult to determine what type of phone call (business or personal) the employee was making when the accident occurred. However, the lines are blurred when it comes to determining whether the accident is “within the scope of employment.”

Whether the call was made on a business or personal cell phone makes little difference; however, the discovery that an accident occurred because the employee was making a job-related call makes the accident “within the scope of employment.”

While there is no foolproof, guaranteed defense to employer exposure for cell phone-related accidents that employees cause while driving and talking, developing appropriate policies, providing training and consistent enforcement mechanisms can help to limit your potential liability and increase public safety.

Once again, you have wide latitude in determining your company policies. Some companies prohibit employees from using cell phones while driving on company time, period. Many businesses adopt cell phone safety policies and emphasize employee training and consistent enforcement.

Sample cell phone use policy

XYZ Nursery expects all employees to use common sense and discretion when using their cell phones in the workplace.

Personal cell phones. Employees must leave personal cell phones at their desks or in their purses or lockers during working hours or when they are attending company meetings, seeing clients/customers/ vendors, allowing all calls to go to voice mail.

Personal calls may be returned during authorized breaks and during lunch hours.

Employees are asked to use discretion when discussing business matters in a public area.

In the unusual occasion of an emergency that may require an employee’s immediate attention, employees will be allowed to carry their personal cell phones in vibrate mode.

Camera phones. Employees may bring personal camera cell phones to work, but they are strictly prohibited from taking pictures with them.

Employees may not take personal camera cell phones into restrooms, locker rooms or any other areas where co-workers maintain a reasonable expectation of privacy.

Camera phones are prohibited in any areas of the nursery where other cameras are already prohibited.

Violations. Violations of this policy can lead to a loss of personal cell phone privileges during working hours or discipline up to and including termination.

Driving and cell phones. XYZ Nursery employees who are issued company cell phones for business purposes and whose job responsibilities include occasional or regular driving are expected to refrain from using their phones while driving. Regardless of circumstances, employees are strongly encouraged to pull off to the side of the road and safely stop the vehicle before checking messages and placing or accepting a call.

Employees whose job responsibilities do not specifically include driving as an essential function of their job, but who are issued a company cell phone for business use, are also expected to abide by the provisions stated above.

Under no circumstances are XYZ Nursery employees to place themselves or others at risk to fulfill business needs.

XYZ Nursery employees who are charged with traffic violations resulting from the use of their phone while driving will be solely responsible for all liability that results from such actions.

Violations. Violations of this policy will result in the most serious forms of discipline, including termination.

- Ron Lehman

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Ron Lehman is commissioner representing employers, Texas Workforce Commission, (512) 463-2826; www.texasworkforce.org.

March 2008