Cell Phones and the NLRB

By on April 10, 2019

With the prevalence of cell phones today, many companies attempt to manage employee time spent on personal mobile devices. At the same time, there are legal limits on what employers can do about this issue.

Many companies do not think of the National Labor Relations Board (NLRB) when it comes to something like cell phone issues, unless perhaps they are unionized. However, the NLRB (which seems to be struggling these days to justify itself with the decline in unions) has taken the position that employees, whether unionized or not, have a presumptive right to use personal phones during breaks and other non-working times. A recent advice memo issued by the NLRB has reaffirmed this stance.

At issue in this case was a company policy that restricted employees’ use of personal cell phones in the workplace. The NLRB memo stated:

The company’s policy in question says that, because cell phones can present a distraction in the workplace, resulting in lost time and productivity, personal cell phones may be used only for work-related matters or critical quality of life activities only. The policy defined quality of life activities as communicating with service or health professionals who cannot be reached during a break or after business hours. The rule further stated that other cellular functions, such as text messaging and digital photography, are not to be used during working hours.

This rule was found unlawful because employees have Section 7 rights to communicate with each other without employer monitoring during any lunch or other break periods. Because the rule prohibits use of personal phones at all times, except for work-related or critical quality of life activities, it prohibits their use on those non-working times. Likewise, the provision regarding text messaging and digital photography, while more limited, still refers to “working hours.” The NLRB found this included non-working time during breaks.

In short, an employer may be able to limit employee use of personal mobile devices during actual working time. But having a policy in place that in any way limits activity during any non-working time likely will run afoul of the NLRB rules.

There may be a simpler way to address this potential issue. If the cell phone is not being used significantly during working time, then there is no real issue. If the cell phone is being used by someone excessively, then you address this issue with the individual, not with everyone in a policy. Sometimes you do not need a policy to address an issue.

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