Use of Employer-Provided Cell Phones Policy

Author: Rena Pirsos, XpertHR Legal Editor

When to Use This Policy

Employers commonly provide various types of cell phones (including smartphones and other mobile electronic devices) to employees for business purposes. As useful as they are, employees can easily abuse them for personal or some other inappropriate use. In addition, many employees who drive for work-related purposes and use a company-issued electronic device while driving, or who are likely to use a personal device for work-related reasons while driving, may talk or send text messages on them while driving for work-related reasons. Employer-provided cell phones also have employment tax implications under the Internal Revenue Code (IRC).

Accordingly, employers should have a written electronic resources policy that includes cell phone usage before providing the phones to employees. This will help prevent excessive personal usage, protect confidential company information and promote driving safety. A written policy also helps control business expenses and prevent the potential inclusion of the value of the phones in the taxable income of employees.

Customizable Policy

Electronic Resources

This policy describes the Company's general guidelines for using its electronic resources, including electronic mail (email), voicemail, Internet access, cell phones (including smartphones and other mobile electronic devices) and computer systems.

Employees should use the Company's electronic resources with the understanding that these resources are provided for the benefit of the Company's business. Employees may use company electronic resources for personal use, during non-work times, so long as such use complies with company rules and applicable law. Employees should never use the Company's electronic resources for personal use in a manner that interferes with their work duties or any responsibilities to customers.

Sending, saving, accessing, or viewing obscene or similarly offensive material on the Company's electronic resources is prohibited. Messages stored and/or transmitted by the Company's electronic resources, including the computer, voicemail, email, telephone systems or cell phones must not contain content that may reasonably be considered to be obscene or other patently offensive material.

Prohibited material includes, but is not limited to, sexual comments, jokes or images, racial slurs, gender-specific comments, or any comments, jokes or images that would discriminate against or harass someone on the basis of his or her race, color, sex, age, national origin or ancestry, disability or any other category protected by federal, state or local law. Likewise, any use of the Internet, email or any other electronic resource to engage in harassment or discrimination prohibited by company policies is unlawful and strictly prohibited. Violators may be subject to discipline, up to and including termination of employment.

Unless otherwise noted, all software on the Internet should be considered copyrighted work. Therefore, employees are prohibited from downloading software and/or modifying any such files without permission from the copyright holder.

No Solicitation or Distribution

The Company's electronic resources must not be used for solicitation or distribution purposes during working time. The Company's no solicitation and no distribution rules apply to the use of electronic resources.

To protect our employees from unnecessary interruptions and annoyances, it is our policy to prohibit the distribution of literature in work areas and to prohibit solicitation and distribution of literature during employees' working time. "Working time" is the time an employee is engaged, or should be engaged, in performing his or her work tasks for the Company. These guidelines also apply to solicitation by electronic means. Solicitation or distribution of any kind by non-employees on Company premises is prohibited at all times. Nothing in this section prohibits employees from discussing terms and conditions of employment.

Software Code of Ethics

Employees may not duplicate any licenses, software or related documentation for use on the Company's premises or elsewhere, unless the Company is expressly authorized to do so by agreement with the licenser. Unauthorized duplication of software may subject users and/or the Company to both civil and criminal penalties under the United States Copyright Act. Employees may not give software to any outsiders including contractors, customers or others. Employees may use software on local area networks or on multiple machines and cell phones only in accordance with applicable license agreements. Employees may not download software from the Internet and install it on their computers or cell phones.

The Company reserves the right to audit any company computer or cell phone to determine what software is installed on it.

Employee Responsibility

Each employee is responsible for the content of all text, audio or images that they place or send using the Company's electronic resources. The same standards should be utilized for the creation of email messages in connection with an employee's work as would be utilized for other company correspondence or memoranda.

Computer and Systems Security

All computers and the data stored on them are, and remain at all times, the property of [Employer Name]. As such, all messages created, sent or retrieved over the Internet or the Company's electronic mail systems are the property of the Company, and should be considered company information. The Company reserves the right to retrieve and read any message composed, sent or received using the Company's electronic resources, including all computer equipment and the electronic mail system, for any business reason including, but not limited to, ensuring compliance with this and all other company policies.

Employees should be aware that even when a message is deleted or erased, it is still possible to recreate the message; therefore, ultimate privacy of a message cannot be ensured to anyone. Accordingly, Internet and email messages are not private. Furthermore, all communications including text and images can be disclosed to law enforcement or other third parties without prior consent of the sender or the receiver.

Employees should also be aware that duplicates of email transmitted through a personal, web-based email account using company equipment could be stored on that equipment; likewise, information regarding Internet sites that an employee has accessed may also be stored.

Email Content Screening

The Company maintains the right to screen all inbound and outbound email content. Email messages or attachments that contain obscene or similarly offensive material may be quarantined and held from transmission or receipt until the sender or recipient can verify the message or attached document is work related.

The Company may, in its discretion, review communications to and from a personal account, subject to state laws regarding attorney-client communications.

If an employee wants to communicate with an attorney or send an otherwise confidential piece of communication that he or she does not want the Company to monitor, the employee should consider using a personal email address and personal computer equipment. If an employee does use company equipment, he or she consents to any monitoring by the Company and should understand that he or she has no right to privacy with respect to such communications, to the extent permissible under applicable law.

Cell Phone Use/Texting While Driving

Employees whose job responsibilities include regular or occasional driving and who are issued a company cell phone (including smartphones and other mobile electronic devices) or use their personal cell phone for business-related work are expected to put safety first. Therefore, personal and company-supplied cell phones are not to be used while driving.

If an employee receives a call on a cell phone while driving, he or she must pull over safely, park, and then either answer the phone or return the call. Furthermore, if an employee needs to make a call, he or she must also pull over safely, park and then place the call. Employees also may not send or review text messages while driving as part of their job responsibilities.

The purpose of this part of this policy is to ensure the safety of employees, other motorists and company property. Employees who are charged with traffic violations, or cause accidents or injuries, resulting from their use of personal or company-issued cell phones or smartphones while driving will be solely responsible for all liabilities, fines, etc., that result, to the extent permissible under the law.

Employees whose job responsibilities do not specifically include driving as an essential function, but who are issued a company-provided cell phone for business use or who use their personal cellular telephone for business use, are also expected to abide by the provisions of this policy.

Tips

  • Use of this policy statement and all or some of its subparts depends on the nature of the workplace and access to and the provision of computers and other electronic devices.
  • Employers should convey that all communication and information systems of the employer are the property of the employer and the employee's use of those resources is not private.
  • Indicate that nonbusiness use of the electronic resources is not private. Reserve the right to review, monitor and access all employee email and Internet communications over company electronic resources. If the Company intends to conduct electronic monitoring and surveillance, indicate that.
  • It is best practice to advise employees that there is no reasonable expectation of privacy when using employer communication and information systems -- even when using a personal email account.
  • Communicate the policy to all new employees. Train employees on the policy, emphasizing that any communications over company electronic resources should not be considered private and explaining other limits on the use of those resources.
  • Emphasize that the Company's no solicitation policy applies to electronic resources.
  • Make clear that discriminatory, harassing, threatening or obscene communications are strictly prohibited and may be grounds for discipline, up to and including termination.
  • Reserve the right to audit any company computer and determine the legitimacy of software installed on local drives.
  • The National Labor Relations Board (NLRB) considers an employer ban on nonbusiness use of corporate email to be unlawful. An employer is allowed to limit employees' rights to use corporate email for Section 7 activities to nonworking times and to impose "uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline." For instance, "prohibiting large attachments or audio/video segments," could be permissible "if the employer can demonstrate that they would interfere with the email system's efficient functioning." In its decision regarding prohibitions against nonbusiness use of company e-mail, the NLRB noted that it does not prohibit monitoring of computer and e-mail systems for legitimate management reasons or notifying employees of such monitoring. In addition, the NLRB's decision does not require employers to offer email access to non-employees for organizing or other purposes and employers are not required to offer employees who do not have email access for work-related purposes, access for nonwork uses.
  • On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) released guidance (the "Report") wherein the NLRB further explained that it will treat electronic distributions of literature, such as through email, as co-worker solicitations. Such solicitations are subject to NLRB requirements that employer rules allow them during nonworking times.
  • Consult legal counsel before implementing an electronic monitoring program to ensure that it is a lawful process that is communicated effectively to employees and conducted in a nondiscriminatory manner.
  • If for any other reason there is reasonable suspicion that the employer's electronic resources contain child pornography, immediately secure the computer and any other repository of the suspect data, and contact the local police and/or the FBI.
  • The Occupational Safety and Health Administration (OSHA) will fine employers who appear to encourage dangerous activities such as texting, using the phone or drinking while driving.
  • Remind employees that they must comply with applicable state laws regarding texting and/or cell phone use while driving.
  • Although talking on a cell phone while driving is not prohibited in all states and some states specifically allow talking on a hands-free device, the safest and most cautious approach is to prohibit all talking and texting on a cell phone for business-related reasons or while driving for a business-related purpose.

Warnings

Providing cell phones (including smartphones and other mobile electronic devices) to employees has employment tax implications under the IRC. Employers must have a substantial, non-compensatory business purpose for requiring employees to use cell phones and smart phones in order for the phones to be treated for payroll tax purposes as tax-free working condition fringe benefits. Such tax treatment eliminates the need to satisfy the business expense substantiation rules of the IRC.

For instance, to be considered tax-free, employers may provide such phones so that they are able to contact employees at all times for work-related emergencies, if employees must be available to speak with clients when employees are away from the office or located in other time zones outside of the employees' normal work days or hours. In addition, the value of an employee's personal use of an employer-provided cell phone is excluded from tax as a de minimis fringe benefit.

However, cell phones provided to promote employee morale, attract a prospective employee or as a way of providing additional compensation to an employee are not considered to be provided for non-compensatory business purposes. Consequently, the value of the use may be included in employees' taxable income under these circumstances.