Legal danger zone No. 2: Employee cell phone policies

Your employee cell phone policy: Keeping it lawful

Dental employees who have trouble ignoring the distractions of cell phones and social media during work hours are a dime a dozen, and so are dentists’ attempts to regulate this HR issue. But creating an employee policy to lawfully address cell phones in the workplace is a very careful balancing act in which you must consider your duty to care for patients, the practice’s obligations under laws like HIPAA, and the employee’s rights under the National Labor Relations Act (NLRA). That’s like being caught between a rock and two hard places—without any clear idea of what your policy should say. Unfortunately, there’s no easy solution to this problem, either.

No direct line: Employee cell phone use in dental practices

There’s no denying it. Dentists have it rough when it comes to legal compliance. And the complex employment laws that regulate what youcan and can’t make rules about are only the beginning of what you need to consider. You also have to worry about upholding patient care standards, abiding by confidentiality requirements, and many other layers of responsibility.

Plus, under HIPAA, you even have enhanced legal obligations to foresee and mitigate possible threats when it comes to safeguarding patients’ protected health information (PHI). That’s right, you’re supposed to see the future and improve it!

With all of these employer responsibilities on the line, it’s tempting to simply prohibit employees from using cell phones while at work. Popular versions include “no cell phone use during office hours,” and even confiscation policies that make statements like “employees must place all cell phones in the basket upon arriving.” Be careful, though. These policies are not only bad HR; they’re unlawful.

What’s wrong with confiscating or banning cell phones during office hours?

Policies like these are problematic for two main reasons:

First, they’re bad HR. This is especially true of the “all cell phones in the basket” policy. Although it’s sometimes hard to think otherwise when you’re frustrated, employees aren’t children, and policies like this one treat them as if they are. This sets the wrong tone for your relationships and can even trigger a rebellious backlash, rather than encouraging your employees to act like accountable adults.

Second, the Nation Labor Relations Board (NLRB) says these policies are unlawful. Confiscating cell phones or prohibiting their use might sound effective, but the NLRB, the government agency that interprets and enforces the NLRA, has a major problem with either approach, especially because these policies mean employees can’t even access their phones during break times. According to the NLRB, policies imposing an overall ban on cell phone usage may discourage or downright interfere with your employees’ legally protected right to communicate about workplace conditions—whether with peers, coworkers, union reps, lawyers, or regulating bodies—and they are therefore unlawful.

But what if your employees aren’t unionized, and you’re pretty sure they’re trying to tweet about their weekend plans rather than discuss workplace conditions? It doesn’t matter, and it also doesn’t matter if the intent of your policy is only to make sure employees stay off their phones so patients are cared for without distractions.

To the NLRB, even policies that might be reasonably interpreted as an attempt to regulate employee behavior during breaks, including overly broad policies restricting usage of cell phones during “working hours,” are unlawful, simply because of the effect they could have on employees’ ability orchoice to exercise their rights.

The NLRB has been targeting employers with increasing aggression in recent years. And when policies that flout the NLRA are discovered, employers come out as the losers almost by default. So what can you do to legally limit cell phone use and misuse in your practice, while staying on the NLRB’s good side?

Lawfully limiting cell phone use: What your policy should include

The best way to a legally compliant cell phone policy isto have someone at CEDR Solutions, an experienced employment law attorney, or an HR expert write it for you. That’s partially because there’s no ready-made policy that fits all practices.

An effective employee cell phone policy needs to include several different elements pertaining to acceptable and nonacceptable cell phone usage. For instance, it could include some of the following points:

• Cell phones should not be used in front of patients.

• Cell phones should not be used when you are expected to be working. (Note: restricting cell phone usage to when the employee is “off the clock” is not lawful since breaks of 20 minutes or less should be paid and are therefore “on the clock.”)

• Cell phones should not be used in the clinical areas or at the front desk.

• Cell phones should only be used in the break room or outside of the practice, etc.

Each office setup is different, so where it is OK to use cell phones may differ. These rules may also need adjustment within the boundaries of what is enforceable in your state.

Don’t forget your HIPAA obligations

It’s critical to ensure your policies do not violate federal, state, or even local laws. But while your policies should treat employees as responsible adults, they also need to be robust, clear, and enforceable in case rules are broken. In addition to the NLRA, there’s HIPAA to consider.

Most cell phones today are also cameras and recording devices. They store images, videos, voice recordings, and data. They also have USB-interface capabilities. If you allow employees to use smartphones during breaks and one of them snaps a picture of something in your clinical area, what are your options as an employer? What if they’ve photographed an OSHA violation?

Employees have protections that allow them to take pictures and videos of workplace conditions, but these protections do not allow them to compromise PHI. They should know not to photograph or post any patient details on social media without formal patient authorization and not to discuss patients with anyone who doesn't work at your practice or have a need to know.

Employees must understand their HIPAA-compliance responsibilities and how severe the consequences of violations can be. HIPAA compliance is another area that should be lawfully and carefully covered in your employee policies.

Good cell phone policies are a balancing act

To keep you out of this legal danger zone, your cell phone policies need to be thorough without being overly restrictive, and lawfully enforceable when you need to discipline or terminate—without treating your employees as children. In short, well-balanced and professionally drafted cell phone and social media policies are essential to protect your practice. They need to be created by an expert, and you will want expert advice to be available to help you enforce them in any difficult situation.