The National Labor Relations Board (NLRB) has determined that it is legal for employers to ban the use of cellphones by employees if they do so for safety and security reasons.
Although the Obama-era board had encouraged the use of cellphones in the workplace, the current board earlier this year found that an employer’s policy prohibiting cellphone use by their truck drivers while driving was lawful due to the substantial safety concerns for commercial drivers supporting the policy. The new decision takes that a step furthe
The board has struggled to keep up with changes in communications technology that have taken place over the years. According Section 7 of the National Labor Relations Act (NLRA), workers have the right to discuss and act on concerns related to wages and working conditions and are legally protected from employer attempts to prevent or retaliate against this kind of speech. However, a lot has changed since the law was enacted in the mid-1930s that the legislators of the day never anticipated.
In regard to the latest NLRB decision, Chad M. Horton, an attorney with the law firm of Shawe Rosenthal, declares that, “This is a good decision for employers. Employers may now prohibit employees from using cellphones in work areas, particularly where the distractions caused by cellphones would pose safety risks or product integrity issues.”
The new case involves Cott Beverages Inc., an American-Canadian beverage and food service company. The NLRB decision approves Cott’s policy that restricted personal cellphones in the warehouse, on the production floor and at employees’ workstations. The restriction against using personal cellphones in prohibited work areas applied only to rank-and-file employees, not to management and other employees who are in leadership positions.
At an earlier stage in the proceeding, an NLRB administrative law judge (ALJ) had held that Cott’s ban was unlawful. The judge stated at that time the rules banning cellphones had infringed on employees’ labor rights, which over the years the board had determined included allowing employees to take photos, record audio and video in the workplace, and make phone calls from work areas, all of which were deemed to be protected by Section 7 of the NLRA.
While acknowledging that the company’s rules potentially infringed upon the employee rights under Section 7 cited by the judge, the board reversed the ALJ’s decision, finding that the impact of the rule was tempered by the fact that it was limited only to working areas as opposed to nonworking areas of the business.
Reasonable and Lawful
Horton explains that the board found the rule’s broad prohibition of personal items—including magazines, clothing, MP3 players and other items as well as cellphones—from work areas was a “reasonable, lawful effort to ensure the integrity” of the employer’s beverage production process and to satisfy federal safety requirements imposed on food-production facilities.
Cott’s contended that its cellphone policy was necessary to prevent contamination of its beverage production processes and to ensure the safety of its employees. It said that to meet U.S. Food & Drug Administration (FDA) requirements, the policy was needed to minimize and eliminate some of the hazards that are inherent in food production.
The company also claimed that the restriction on cellphones was necessary in warehouse areas because employees in those facilities typically drive forklifts with heavy loads throughout high-traffic areas where distractions could cause serious accidents and injuries.
“This decision confirms that facially neutral rules designed and tailored to promote workplace safety likely will be upheld as lawful,” observe attorneys Mark Theodore, Joshua Fox and Elizabeth Dailey of the Proskauer Rose law firm, “even where there is a possibility that the rule will interfere with employees’ Section 7 rights.”
Because of the distractions that are inevitably posed by cellphone use, the NLRB said “a blanket prohibition on usage in work areas is a reasonable restriction” to reduce on-the-job accidents and product contamination.
“The board has struggled for years with the concept that certain common-sense employer business policies can be unlawful,” the Proskauer Rose attorneys point out. “It is difficult to draw bright-line rules from such decisions due to the varied workplaces—even more so now during the COVID-19 pandemic, where workplaces are transforming and new safety guidelines are issued. What may present a legitimate workplace safety concern in one setting may be deemed pretext in another.”