Wake-up Call: Fixing Your Employee Cell Phone Policy

Many of us are attached to our cell phones and a tap or two away from our social media accounts 24/7 these days—including your employees! This poses unique challenges to dental practices attempting to regulate employee behavior on the job.

Unlike so many other businesses, dentists and practice managers have to worry about upholding standards of patient care, complying with HIPAA and keeping Protected Health Information (PHI) safe, confidentiality requirements, and all sorts of other layers of responsibility.

With all that on the line, it’s clear that you need a clear and firm policy regarding cell phone use in your practice. But…wouldn’t it be easier just to tell employees they can’t use their phones…or even to take them all away during the workday?

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Beware: Cell phone confiscation makes for an unlawful policy

Lately, I’ve noticed a trend of dentists and managers taking more and more extreme measures to keep employees off their phones while at work, including confiscation policies like this one: “Employees must place all cell phones in the basket upon arriving at work.” And I understand the temptation! But there’s a problem with this approach: It’s not great HR, and even worse, it’s unlawful.

Policies like this sound like they might be effective, but recent decisions by the National Labor Relations Board (NLRB) have found these types of policies to be unlawful. Why? They may discourage or even interfere with an employee’s right to use their cell phones, during break times, to communicate about workplace conditions with fellow employees, union reps, lawyers, or regulating bodies.

You are reading this correctly: Employers not only can’t restrict an employee from discussing their wages and working conditions with one another, you can’t even have a policy that may discourage an employee from exercising those legally protected rights!

Not only that, but employees are adults—even if not all of them act that way. Cell phone confiscation policies and outright bans are a bit too parental, and can trigger a backlash of rebellious discontent that is not worth the effort.

So, what’s the wisest alternative to keep employees off their phones when they should be working?

From an HR perspective, there’s no single easy answer that fits all practices. An effective employee cell phone policy needs to cover many different elements and scenarios:

  • Cell phones should not be used in front of patients or at the front desk
  • Cell phones should not be used when employees are expected to be working (Note, you can’t restrict cell phones to only “off the clock” because breaks of 20 minutes or less should be paid, and thus are on the clock).
  • Cell phones should only be used in the break room / outside the practice / etc.
  • And more…

And each office setup is different, so that’s a challenge, too. Your rules may need adjustment, within the boundaries of what is enforceable in your state.

The hard, scary facts on employee cell phone use

It is not reasonable to expect that phone, text, and social media usage stops cold and your employees’ personal inbox disappears at work just because we, as employers, make a rule. And while our policies should treat employees as the responsible adults that most of them are, those policies do need to be robust, clear, and enforceable in case rules are broken.

Here are some points to consider:

  • Legal compliance. Policies must not violate any federal, state or even local laws, especially the National Labor Relations Act (NLRA), which applies to all employers, regardless of union status. The NLRB, which enforces the NLRA, has been particularly aggressive in recent years.
  • Smartphone capabilities. Today’s phones are also cameras and recording devices. They store and transmit images and videos, voice recordings, and data. If an employee snaps a picture of something in your clinical area during break time, do you know your options as an employer?
  • What if an employee photographs an OSHA violation? This is important to understand: Employees have protections that allow them to take pictures and videos of workplace conditions—but not to compromise PHI.
  • All employees must be fully trained in their HIPAA compliance responsibilities, including the safeguarding of PHI. They should know better than to photograph or post any patient details on social media (even your practice’s) without formal patient authorization, or to discuss patients with anyone not at your practice and who doesn’t have a need to know. Your employees must also understand how very severe the consequences of HIPAA violations can be.

To keep you safe, your cell phone policies need to be thorough without being overly restrictive, and 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.

These policies need to be created by an expert, so call us or contact your favorite attorney for help, and it doesn’t hurt to have expert advice on hand to know how to legally enforce them in any difficult situation.

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