If you want to know just how much trouble smartphones can cause at work, ask Till Bender. Bender is a lawyer with DGB Legal Protection. He represents union members in labor court. In his work, he’s dealing with more and more cases involving smartphones. “Many people lack the awareness of when, how, and where they should use their cell phones,” says the legal protection expert. In the worst-case scenario, this can lead to termination without notice.
Can I use my smartphone for personal purposes at work?
Till Bender: Employers often tolerate personal smartphone use. However, that doesn’t mean employees are allowed to constantly check WhatsApp messages or follow eBay auctions while working. This impairs work performance, which must be carried out in accordance with the employment contract. Anyone who frequently has their smartphone in hand while working risks a written warning. In extreme cases, it can even lead to termination.
Can employers restrict smartphone use in the workplace?
Yes. For example, employers can require that employees not make personal phone calls in open-plan offices because this disturbs coworkers sitting nearby. The same applies to taking photos or making audio recordings (see below). Employers can also set time limits for smartphone use. However, restrictions must not be arbitrary and must not disadvantage individual employees. There must be objective reasons for different rules within a company. The works council has a right to co-determination.
Can employers completely ban smartphones at work?
Generally not. A total ban violates employees’ legitimate interests in using the device, for example, during breaks. However, there may be exceptions—such as when a smartphone interferes with production processes or sensitive measuring instruments. The risk of industrial espionage does not justify a complete ban. Prohibiting the camera function alone would suffice for that purpose.
What are the rules for company-issued cell phones?
Company-issued cell phones may be used for personal purposes if the employer permits or tolerates it. If there are no official rules on this and employees wish to use the cell phone for personal purposes, they should inform their employer. Excessive personal use is not permitted, even with a company-issued cell phone at the workplace. By the way: Company-issued cell phones are tax-free; they do not have to be taxed as a so-called “benefit in kind.”
Am I allowed to (secretly) record conversations?
Under no circumstances. “Anyone who records conversations with colleagues or supervisors commits a breach of trust and violates the general right of personality of those being recorded,” says labor union lawyer Till Bender. “This is a criminal offense and can lead to termination without notice.” Just this past January, the Hessian Regional Labor Court ruled on such a case:
An employee had secretly recorded a performance review using his smartphone. The judges ruled that termination without notice is justified in such cases. Although the employee claimed he did not know that recording was prohibited, this did not protect him from termination.
Recording is not permitted even if the smartphone is lying openly on the table. Anyone who wants to record a conversation must obtain the consent of all participants in advance.
Am I allowed to film and take photos at work?
Here, too, extreme caution is advised. Employers have the right to protect internal information and production processes. Taking photos in the assembly hall or the accounting department can jeopardize trade secrets. In a recent case, a woman was terminated because she had photographed a to-do list. Her explanation: She was nearsighted, had trouble reading the list, and wanted to “zoom in” on it. Although the labor court overturned the termination, the judges considered a written warning to be justified. Many companies have policies on this matter. If you’re unsure, you should check with the works council—or, if there isn’t one, directly with your supervisor.
How does the works council have a say?
If employers want to establish general rules regarding smartphone use at work, the works council must be involved. Such rules concern workplace order and are therefore subject to co-determination.
Is smartphone tracking allowed?
Employees in the field can be tracked by their employer via their work smartphones. However, there are legal limits to tracking, as this involves personal rights. Tracking is permissible only in very limited exceptional cases—such as when it serves the employee’s safety. Employees must be informed of this practice. The works council has the right to co-determination. And after work hours, employees are free to simply turn off their work cell phones.
Note: IG Metall members are represented free of charge by attorneys from DGB Rechtsschutz GmbH in labor and social courts, if necessary. The first point of contact for any issues is the local IG Metall office. More information is available here.
