Are workplace bans on personal cellphone use a violation of civil rights?

[GoodWorker32]

Jurisdiction

Arizona

The employee I'm training is, to put it lightly, difficult. She has a hard time following all sorts of workplace rules, particularly our employer's rule on personal cellphones. Our employer doesn't want us to use our personal phone for any reason. They don't even want our phone to be sitting on our desk for that matter (if the phone is so much as sitting on your desk, you're using it as far as management is concerned). Strict, I know. However, they make this rule abundantly clear on day one (and they stress on day one that it's a terminable offense).

When I'm in my trainee's workspace, she'll frequently use her personal phone. I politely point out that I'm not a manager, I don't personally care that she's using it, BUT it's in her best interest to refrain from using it (because management could fire her if they caught her). Every single time she makes an excuse though. Her latest excuse really intrigued me. As her phone was vibrating in her purse, she said she has to check it because it could be an emergency. I told her "If management catches you, they won't care how much of an emergency it is." She then replied "That's a violation of my civil rights...so they can go *bleep* themselves."

As difficult as she can be, did she have a point in this instance? Is the total ban on personal cellphone use really a civil rights violation?

 

[justblue]

The employee I'm training is, to put it lightly, difficult. She has a hard time following all sorts of workplace rules, particularly our employer's rule on personal cellphones. Our employer doesn't want us to use our personal phone for any reason. They don't even want our phone to be sitting on our desk for that matter (if the phone is so much as sitting on your desk, you're using it as far as management is concerned). Strict, I know. However, they make this rule abundantly clear on day one (and they stress on day one that it's a terminable offense).

When I'm in my trainee's workspace, she'll frequently use her personal phone. I politely point out that I'm not a manager, I don't personally care that she's using it, BUT it's in her best interest to refrain from using it (because management could fire her if they caught her). Every single time she makes an excuse though. Her latest excuse really intrigued me. As her phone was vibrating in her purse, she said she has to check it because it could be an emergency. I told her "If management catches you, they won't care how much of an emergency it is." She then replied "That's a violation of my civil rights...so they can go *bleep* themselves."

As difficult as she can be, did she have a point in this instance? Is the total ban on personal cellphone use really a civil rights violation?

No. It is not.

 

[Tax Counsel]

As difficult as she can be, did she have a point in this instance? Is the total ban on personal cellphone use really a civil rights violation?

This particular Karen evidently doesn't have a clue what civil rights really are. There is no federal or state law that gives an employee a right to have a cell phone at work. As a result, if the employer terminates her over this, she won't have any good wrongful termination claim and since the employer has made the policy very clear she might find she's out of luck on unemployment comp benefits too.

And employees got along just fine for many centuries without a cell phone for someone to immediately reach them in an emergency, and people can get along just fine without them at work now. There are other ways to reach people when needed.

 

[cbg]

I'll be honest with you - I don't know if you have the authority to do this, but if you do, I'd fire Karen right now. If this is her behavior when she's new and just in training, imagine what she's going to be like when she's settled in a little more.

And if she threatens to sue? Tell her to help herself.

 

[GoodWorker32]

I'll be honest with you - I don't know if you have the authority to do this, but if you do, I'd fire Karen right now. If this is her behavior when she's new and just in training, imagine what she's going to be like when she's settled in a little more.

And if she threatens to sue? Tell her to help herself.

Unfortunately I don't have the authority to fire. On paper, I am on the same level as her. The only reason they're having me train her is because I have a lot of on-the-job experience when it comes to the tasks she'll be doing.

After reading a few responses to this thread, you posters are right. She's a total Karen. Sometimes it takes a 3rd party's perspective to get the ideal input.

Here's another one of her absurd excuses for why she HAD to use her phone: She pulled out her phone to show me something. I advised she hide that thing before management catches her using it. She replied "I'm not using it. I'm only showing a picture."

 

[adjusterjack]

Report her to management ASAP. Otherwise you risk being fired for not reporting such a blatant violation.

 

[Redemptionman]

She will qualify for unemployment if fired for such a rule, as typically most unemployment comp is associated with willingness to perform work not such a BS rule about personal cell phones.

 

[Tax Counsel]

She will qualify for unemployment if fired for such a rule, as typically most unemployment comp is associated with willingness to perform work not such a BS rule about personal cell phones.

My guess is that you aren't very familiar with unemployment compensation law, especially Arizona unemployment law. Under AZ unemployment comp law, benefits may be denied for wilful or negligent misconduct. Among the things that constitute willful or negligent misconduct is "8. Violation without good cause of any rule of conduct, safety rule or other rule in any way related to the employment which is reasonably imposed and communicated by the employer or which can be reasonably implied from the type of employment." Arizona Revised Statutes (ARS) § 23-619.01(B)(8). Thus, violating a rule of the employer that is "reasonably imposed and communicated by the employer" can be a basis for denying unemployment benefits.

The Arizona Courts reinforce that violations of the employer's rules may be a basis for denial of benefits, so long as that rule was clearly communicated to the employee:

A claimant is ineligible to receive unemployment benefits if he or she was discharged for willful or negligent misconduct connected with the employment. A.R.S. § 23–775(2). "Misconduct connected with the employment" means any act or omission by an employee which constitutes a material or substantial breach of the employee's duties or obligations under the employment contract, such as violating a company rule without good cause. A.R.S. § 23–619.01(B)(7) (Supp.1993); A.A.C. R6–3–5101; R6–3–51485 ("[W]hen hired, an employee agrees to abide by the rules of his employer."). The employer must establish that the employee knew or should have known of the rule prior to violating it, and that the rule is reasonable and uniformly enforced. ​

Rios Moreno v. Arizona Dep't of Econ. Sec., 178 Ariz. 365, 367, 873 P.2d 703, 705 (Ct. App. 1994)(bolding added).

Under that standard, an employee might well be denied benefit for violating the company cell phone use policy while at work. Whether this particular employee would be denied benefits would depend on all the evidence heard by the state Department of Employment Security about the rule, how it was communicated to the employee, etc.

 

[Redemptionman]

^

I am 80-90 percent sure they would qualify for unemployment. Having a personal cell phone is in no way any of those willful wanton or negligent conduct. It could be my sick uncles cousin who is in the hospital. Anybody, this still doesn't interfere with the ability to perform work, remember the burden is on the employer to prove they don't qualify not the employee.

 

[GoodWorker32]

Report her to management ASAP. Otherwise you risk being fired for not reporting such a blatant violation.

Yeah, that's my biggest concern. Her behavior ends up putting ME at risk. If management happens to walk by while she's showing me stuff on her phone, the supervisor will likely think we're both goofing off.

It's getting to the point where I'm going to have to be firm with her and basically say "What you do when I'm not around is your business. But when you use your phone during our training sessions, you end up putting ME at risk. Next time it happens, I have no choice but to go to management...and I really don't want to go to management."

 

[cbg]

Whether she will or will not qualify for unemployment should not be the deciding factor here.

 

[GoodWorker32]

^

I am 80-90 percent sure they would qualify for unemployment. Having a personal cell phone is in no way any of those willful wanton or negligent conduct. It could be my sick uncles cousin who is in the hospital. Anybody, this still doesn't interfere with the ability to perform work, remember the burden is on the employer to prove they don't qualify not the employee.

Remember, they spell out the cell policy on day one. They'd probably tell you to give out your extension (everyone has a work landline at their desk) in case of dire emergencies (I haven't asked because I don't have a spouse or kids).

 

[retic]

I would terminate sooner rather than later as this is a new hire still in training/probationary period, so it won't affect the employer's UC premiums too much.

At a prior job employees weren't even permitted to have a cell phone in the facility, much less in use while on the clock. We had to pass through metal detectors and briefcases, purses, backpacks, etc. were sent through x-ray machines on entry and exit. No one fussed about civil rights violations.

 

[Tax Counsel]

^

I am 80-90 percent sure they would qualify for unemployment.

Based on what? I gave you the applicable law in Arizona that defines willful misconduct to include violation of a clearly communicated rule. You've provided no law to support your position, only your hot take on the matter because you think the rule BS. Remember, though, it's not what YOU think of the rule that matters.

Anybody, this still doesn't interfere with the ability to perform work, remember the burden is on the employer to prove they don't qualify not the employee.

As the Arizona law makes clear, it isn't just "ability to perform work" that matters in these decisions. But I do agree with you that under Arizona law the employer must prove to the state that the misconduct occurred.

 

[Zigner]

Remember, they spell out the cell policy on day one. They'd probably tell you to give out your extension (everyone has a work landline at their desk) in case of dire emergencies (I haven't asked because I don't have a spouse or kids).

Ignore Redemptionman on this matter. He is making wild guesses that are not based on any applicable law.

 

[Redemptionman]

LOL, you guys are funny and cute.

Yeah, an agency determination letter will be released usually 3-4 weeks after the recently unemployed has been collecting benefits. That letter will state either "disqualified" or "not disqualified". So, unless the employee stole money, set the building a blaze, or even attacked a co worker they are 99 percent assumed to be able to qualify for the benefits. If they however, are later to be determined to not to have qualified then they will have to pay the money received back. A labor attorney sometimes will even work these cases pro bono or a flat fee and can over turn agency determinations.

But by all means keep spouting the legal requirements for unemployment. In the end, it is up to the state employee with the agency to make the determination.

 

[cbg]

Of course it's up to the state agency to make the determination! No one said otherwise. The OP didn't ask what her unemployment status would be.

This girl deserves to be fired regardless of what decision the state makes.

 

[adjusterjack]

LOL, you guys are funny and cute.

You're a troll. Posting drivel just for your own amusement.

In the end, it is up to the state employee with the agency to make the determination.

You are utterly clueless about how that's done.

TC is correct in his analysis. Not that he needs my endorsement but I have been through the Arizona UC appeals process and studied the same Arizona UC statutes and case decisions.

Having a personal cell phone is in no way any of those willful wanton or negligent conduct.

True. But incessant use of the cell phone, instead of working, can certainly rise to that level.

It could be my sick uncles cousin who is in the hospital.

Then you ask to be allowed the phone call or PTO to handle the emergency. You don't use your phone all day to make calls, look at pictures, or play Angry Birds.

 

[army judge]

The NLRB and others MIGHT take a DIFFERENT view.


Can You Prohibit Employees From Using Cell Phones At Work?
Wednesday, March 20, 2019
With the prevalence of cell phones in today's society, many companies struggle with how to manage employee time spent on personal mobile devices. But there are legal limits on what employers can do on this front. The National Labor Relations Board (NLRB) has taken the position that employees have a presumptive right, in most instances, under the National Labor Relations Act (NLRA) to use personal phones during breaks and other non-working times.

A recent advice memo issued by the agency has reaffirmed its stance – even since the NLRB generally has taken a more lax view of employer personnel policies over the last year. At issue, in this case, was a company policy that limited employees' use of personal cell phones in the workplace. The relevant analysis in the NLRB memo states:

"This [company's] rule states that, because cell phones can present a 'distraction in the workplace,' resulting in 'lost time and productivity,' personal cell phones may be used for 'work-related or critical, quality of life activities only.' It defines 'quality of life activities' as including 'communicating with service or health professionals who cannot be reached during a break or after business hours.' The rule further states that '[o]ther cellular functions, such as text messaging and digital photography, are not to be used during working hours.' This rule is unlawful because employees have a [NLRA] Section 7 right to communicate with each other through non-Employer monitored channels during lunch or break periods. Because the rule prohibits use of personal phones at all times, except for work-related or critical quality of life activities, it prohibits their use on those non-working times. The phrase regarding text messaging and digital photography is more limited, but still refers to 'working hours,' which the Board, in other contexts, has held includes non-work time during breaks. Although the employer has a legitimate interest in preventing distractions, lost time, and lost productivity, that interest is only relevant when employees are on work time. It, therefore, does not outweigh the employees' Section 7 interest in communicating privately via their cell phones, during non-work time, about their terms and conditions of employment." (emphasis added)

In other words, while an employer may be able to limit employee use of personal mobile devices during working time in order to minimize distractions, having a policy in place that is worded in a way that limits that activity during non-working time may run afoul of the NLRA.

This is another reminder for employers to ensure their policies are drafted in a way that conforms to applicable NLRB standards. A poorly drafted rule – even with the best intentions – can result in legal headaches for a company.

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[army judge]

With employers desperately seeking to hire qualified people to add to their workforce, a well qualified person should seek other employment if he/she is dissatisfied with her/his current employer.

Its never wise to break your employer's rules.

If working conditions are intolerable, unbearable, uncomfortable, or insufferable seek employment elsewhere.

It is very foolish for YOU to SULLY or STAIN your good name.

No one appreciates insolence, recalcitrance, or obstinance.