Progressive Discipline Best Remedy for Workplace Cellphone Abuse

LeisingerDana2015We are having problems with employees taking long rest breaks. These employees take their cellphones and go to the restroom for long periods of time. What can we do to curb this problem?

This is a problem that has been increasing steadily, as employees are tied to their cellphones for communication/calls, playing games, and surfing the Internet.

There are a number of ways to handle the problem, but the best remedy is progressive discipline.

Rest Break Policies

When employees are taking long rest breaks, it becomes a matter of the employer’s rest break policies and what happens when there is noncompliance.

Noncompliance usually leads to a disciplinary action, frequently starting with an oral warning, with the classic progress of going to a written warning next if the situation doesn’t improve. The progression can continue up to and including termination if the problem is severe enough and the employee does not respond.

Some employers have reported that employees are taking rest breaks of 30 minutes, twice a day—this can result in a substantial loss of productivity, and “overpayment” if nonexempt employees are not reporting time properly.

Medical Concerns

Occasionally, an employee might claim to have medical issues that require longer rest breaks. If this is the situation, the Americans with Disabilities Act (ADA) requirements come into play, and the employer and employee can enter into the “interactive process.”

During this process, both parties explore ways to resolve the problem, with the employee participating equally in searches for solutions. Sometimes it might become necessary to get a doctor’s note, with possible recommendations from the doctor.

Restricting Cellphone Use

It is important to remember that employees have no absolute right to bring their cellphones (or any other electronic devices) to the workplace. Some employers are restricting the use of cellphones in the workplace, or even banning their presence entirely. This is permissible and it is not illegal.

Many businesses, however, need various electronic devices for their employees. If this is the case, it is recommended that you consult with legal counsel to draft the appropriate policies accordingly.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at

Staff Contact: Dana Leisinger

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Dana Leisinger joined the CalChamber in 2000 and currently serves as an employment law expert. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.