Cell phones in the workplace are a distraction that employers want to control and employees don’t want them to control.  The common statement by an employee is “what if I get an emergency call?  I cannot be unavailable to my . . .“ And what makes this worse is that the National Labor Relations Board (NLRB) generally sides with employees without regard to the practicalities involved.

However, in Cott Beverages Inc., Case 16–CA–181144 (2020), the provided reasonable guidance when employers can and cannot regulate cell phone usage.  In this situation, Cott is a beverage manufacturing company that operates 15 facilities nationwide, including one in San Antonio, Texas. It produces and packages carbonated soft drinks, juices, and purified water. The Respondent’s San Antonio production and warehouse employees are covered under corporate-wide rules as well as rules specific to the San Antonio facility.

Specifically, Cott had a companywide policy in part that stated, “[c]lothing and personal belongings, such as . . . personal cell phones are not to be kept at the work station. These items are to be stored in lockers or in your personal vehicle.”  The San Antonio facility-specific rules provided similarly, “[p]ersonal items (items not directly related to production processes or job requirements) are not allowed in work areas. These include . . . cell phones . . . etc. These may be kept in an associate’s locker and may be used during break periods in designated areas.” Importantly, these rules prohibited cell phones only in working areas.

At the time the NLRB General Counsel argued that the cell phone bans infringed on employees’ Section 7 rights to take photographs and to record audio and video in the workplace.  Cott responded by pointing out that its Good Manufacturing Practices are necessary to avoid contamination of the beverage production processes and for the safety of its employees. Its policies were developed in response to U.S. Food and Drug Administration (FDA) requirements, pursuant to the Food, Drug, and Cosmetic Act (FDCA), that companies establish and follow practices to minimize hazards inherent in food production. Cott contended that the prohibition of personal items from its production area minimizes the risk of items coming loose and contaminating the beverages it produces and that the application of its rule to the warehouse is necessary because warehouse employees operate five-to-six–ton forklifts in a high-traffic environment, and the distractions associated with cell phones create a safety situation. 

The ALJ sided with the General Counsel.  However, the NLRB overturned the ALJ decision and sided with Cott stating that they found that Cott’s legitimate business interests outweigh the relatively slight risk that the Good Manufacturing Practices will interfere with employees’ right to engage in activity protected by the NLRA. Everything was documented and nothing prohibited employees on their own time to use their phones.

Therefore, when establishing a policy prohibiting cell phones at work, HR should review and document for the following three areas. 

1. Can an employer point to safety concerns it is seeking to protect?
2. Is the limitation focused solely on manufacturing (or other) areas where safety is of utmost importance?
3. Can employees use their phones at other locations within a plant and at other times (e.g., breaks) during the day?

HR should work with legal counsel to draft and implement a no cellphone policy ensuring they can address how an employee can access their phone in case of emergency.

Source:  Ogletree Deakins 5/27/2020