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
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
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
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
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?
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
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
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
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
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
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