In our last column we discussed the increased use of smart phones in the workplace by both employees and management. The concern of many managers has become what can we do so that productivity is maintained and what laws can we rely on to enforce any policy or procedures we choose to implement.

A quick review of the previous column shows the impact text messaging and social networking sites have had on business.

In October 2009 a report issued by CTIA titled, “CTIA – The Wireless Association’s Semi-Annual Wireless Survey Results,” included information that said 4.1 billion text messages had been sent each day in the U.S. during the first half of 2009. How many of those messages were sent by employed individuals? According to the 2009 poll conducted by the Marist Institute for Public Opinion, nine out of ten (or 87%) of U.S. residents were cell phone owners, and that figure increased to 92% among employed Americans, meaning almost every employee in a company may have had a cell phone with text-messaging capabilities.

How many employees visit social networking sites? According to the August 2010 Nielson report titled, “What Americans Do Online: Social Media and Games Dominate Activity,” the majority of Americans spend their time online on social networking sites. Facebook, which in July 2010 reported 500 million subscribers, was the most-visited social networking site. Almost 85% of all time spent on social networking sites are on Facebook. It is probable the American workforce spends the majority of their workday engaging in some form of social networking activity.

What’s The Law?

To date there is no federal or state law that requires employers to allow employees to have access to their personal cell phones, or to make or receive personal phone calls during work hours. There is also no federal or state law that permits or prohibits an employer to monitor or search an employees’ personal communications equipment.

Only California, Colorado, and New York have passed laws concerning texting or blogging about the workplace and that is specifically towards limiting the employer’s ability to discipline or terminate an employee based on lawful activity (posting comments on social networking sites) when done so outside of working hours and away from the employer’s premises.

A few states have also passed laws making it either a misdemeanor or felony for harassing other individuals through text messaging, instant messaging, electronic mail or any similar communication.

So what is the employer to do when there are limited laws to assist not only in protecting the employer from harassment issues but also addressing those employees who abuse the tools the company has provided for work use?

Written Policies

It is recommended that the employer expand its’ generic cell phone policy to include specific policy statements for employee-owned cell phones, company issued cell phones and social networking.

Suggested Policies for Employee Owned Cell Phones

Implement a search policy stating all personal items brought into the workplace are subject to search. In the search policy state that employees do not have a right to privacy in anything they bring into the workplace. Be sure to state that “no expectation of privacy” policy cannot be altered or limited by anyone in the company and also include a “no exceptions” rule. Everyone from the CEO on down is included.

Include guidelines as to what employees should do in the event they feel harassed through text messages including any inappropriate pictures transmitted through a cell phone. In addition, since most cell phones today have built in cameras, consider restricting employees from taking their cell phones into restrooms or dressing areas. You may also want to consider prohibiting cell phones in the vicinity of private documents, financial data or any other type of confidential material.

If your firm has personnel who function as drivers for your company, the policy should include that talking or texting on a cell phone while driving is prohibited.  

Suggested Policies for Employer Issued Cell Phones  

All of the above should be included. There should also be language that establishes the cell phone is the property of the company. Require employees to use formal English or whatever language is predominant. No text shorthand should be permitted such as OMG or PITA. State that monthly phone records will be reviewed. This should reduce or eliminate overages and purchases of games, ring tones, and apps. This will also prevent employees from sending inappropriate text messages. Include that employees may not personalize the phone beyond work requirements and they will be charged for any calls, messages, or other purchases that are not work related. Require the employee to notify management when companies phone is lost or damaged and include who bears the financial burden on lost or damaged equipment. 

Suggested Policies for Social media Use

Once again it should begin with a no expectation of privacy statement relating to online activities. “Online Activities” should also be defined.

State in the policy the employee is prohibited from using social media (e.g. Facebook, blogs, etc.) during work hours.

Concerning non-working hours, the policy should state that while the company respects the rights of its employees and what they do on their own time they should be mindful of any after-hours activity that would violate company policy, code-of-conduct, or confidentiality. Include a statement that any online conduct that occurs after-hours and the employer becomes aware of, may be considered for discipline, or any action the employer deems appropriate including termination.

Include a statement that online and offline conduct should always be respectful of both the company and fellow employees and that employees should never disclose the personal information of any employee.

Be sure the employees understand that they cannot and may not speak on behalf of the company online, unless they have been specifically authorized to do so by an authorized employer representative. It should be specifically stated who can provide the authorization to do so.  Remind them that all company information, even public knowledge, is considered confidential and not to be discussed or disclosed online without prior authorization do to so. Again specifically state who can grant permission.

Inform all employers, supervisors and managers to use good judgment if they elect to become online “friends” on social media websites. Inform all employees that they should never feel obligated to become online friends with any supervisor, subordinate or peer.

The preceding are only suggestions. Every policy will be different for every employer. Policy will depend on the nature of the company’s business and its operations. A company may require its employees to use the Internet or cell phones to conduct business.

Regardless, a well thought out and communicated policy with respect to cell phones and social networking will provide a better work atmosphere for all employees and less headaches for the employer.

I wish you well.

The information provided above is for educational purposes only and not provided as legal advice. Legal advice should be obtained from a licensed attorney in good standing with the Bar Association and preferably Board Certified in either Creditor Rights or Bankruptcy.