In a recently released Advice Memo, ADT, the U.S. National Labor Relations Board Office of General Counsel (NLRB) has concluded that prohibiting the use of personal cell-phone at all times during the workday violates an employee’s right to private communications during non-employer monitored channels, such as lunch or breaks. It is therefore unlawful to include blanket cell phone bans in Employer’s handbook rules as it is seen to unlawfully infringe on employees’ Section 7 rights in violation of Section 8(a)(1).
The Rule at Question
The Employer’s handbook rule in question stated that cell phones created “distraction[s] in the workplace,” that led to “lost time and productivity,” [resultantly] personal cell phones may be used for “work-related or critical, quality of life activities only.” Quality of life activities included: “communicating with service or health professionals who cannot be reached during a break or after business hours.”
Notwithstanding the employers interest in preventing distractions that incur a lost in productivity, the NLRB concluded that the rule prohibiting personal cell phone use at all times during the workday was unlawful. The conclusion is based on the right employees have to communicate privately under Section 7 of the National Labor Relations Act. Additionally, although the rule stated the conditions when a personal cell phone usage was allowed, the NLRB concluded that the Employer’s rule in its entirety does not allow employees to reasonably infer when they could use their cell phone during the non-working hours of their workday. In other words, the rule does not clearly state the situations under which employees were allowed to use their cell phone during non-working times of the workday.
Takeaway for Employers
Employer Takeaway: Employer Handbook rules that provide for a complete bar to personal cell phone usage during the workday that include non-working times of the workday violate employees’ Section 7 rights as authorized by Section 8(a)(1), and are thus unlawful.
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