Cell Phone Use at Work: Can I use my work cell phone for personal matters or my personal cell phone for work-related matters?
Without a doubt, one of the most important things for humans is to disconnect. This is something that’s becoming increasingly difficult for us due to the excessive use we all make of our cell phones. In fact, according to a study by Ditrendia, Spaniards spend an average of nearly 4 hours a day using their smartphones. That’s why today we’re talking about cell phone use at work.
Concerns About Cell Phone Use at Work
All of this has evolved to the point where the vast majority of us use our personal cell phones for work or our company phones for personal matters, making it practically impossible to distinguish between these two worlds. This situation raises several questions:
- Can my employees use their work cell phones for personal purposes?
- Can my boss restrict or prohibit my use of my cell phone for personal matters during my workday?
- What happens if I use my work phone for personal matters?
These issues are a common topic of discussion, so let’s try to clear up these uncertainties.
Can I restrict the use of work cell phones for personal matters at my company?
Organic Law on Data Protection
First, we must refer to the Organic Law on Data Protection (LOPD), specifically Article 87, which states: “Workers and public employees have the right to privacy when using digital devices made available to them by their employer.”
In addition, it states that “The employer may access content resulting from the use of digital devices provided to employees for the sole purpose of verifying compliance with employment or statutory obligations and ensuring the integrity of such devices.”
Furthermore, “Employers must establish guidelines for the use of digital devices, ensuring in all cases that they comply with minimum standards for the protection of employees’ privacy in accordance with social norms and constitutionally and legally recognized rights. Employee representatives must participate in the development of these guidelines.”
Therefore, the first conclusion we draw from Article 87 is that the use of cell phones as such (provided it is not for criminal or unlawful purposes) cannot be prohibited at work. However, limits or guidelines for their use may be established.
Workers’ Statute
However, as with any general rule, there are exceptions. According to Article 58 of the Workers’ Statute Act, an employer may restrict the use of cell phones or certain apps if they are being used improperly. The employer must do so by providing prior notice, which must be given in one of two ways:
- First, through an internal memo announcing both the ban and the penalties.
- Second, this same provision must also be included in a clause in the employment contract between the employer and the employee.
What about using a personal cell phone for work-related matters?
As for this issue, there isn’t much legislation on the matter. On the other hand, we can find some court rulings that shed some light on the matter and help answer this question. First, as a general answer, a ruling by the National Court (reaffirmed last year by the Supreme Court (TS)) states that requiring an employee to provide their own cell phone to perform their job constitutes an abuse of corporate rights. This would violate the principle of the employer’s ownership of work tools, one of the most fundamental characteristics of an employment contract.
Let’s take a closer look at this issue. There is another Supreme Court ruling that even goes so far as to state that an employee, if he or she so chooses, is not required to provide the hiring company with either his or her email address or phone number.
Cell Phone Use at Work, the Right to Privacy
Having discussed all of this, we can conclude that employees’ right to privacy is strongly protected by current legislation. The law that safeguards this right is Organic Law 1/1982, of May 5, on the civil protection of the right to honor, personal and family privacy, and one’s own image.
Based on the provisions of this Organic Law, case law has developed over the years establishing that any technological device through which a person’s family or personal life unfolds is protected by the right to privacy.
The use of technology by our employees and within our companies is becoming increasingly restricted. If you need to monitor technology use at your company—within the workplace—using certain monitoring applications, please contact Carrillo first. Our Labor Law Department will be happy to assist you.
