In 2016, the cell phone became the primary means of accessing the internet in Brazil and an indispensable object for a large part of the population, including a significant portion of professionals during their work. According to Anatel, in May 2016 Brazil reached 255.23 million active mobile phone lines, representing an increase of almost 80% compared to the 143 million lines existing in 2014.
Furthermore, with the evolution of device connectivity to the internet, the main function of cell phones has become the use of internet-based services, such as access to email, social networks, instant messaging programs, audio, video, and image applications. Among the most prominent are Facebook, WhatsApp, Messenger, Instagram, Twitter, Skype, Snapchat, and many others.
Bringing the topic to the corporate environment of human resource and IT management in companies, the objective of this article is to outline what managers can/should do to address the situation of cell phone and internet use in the workplace, and what can be done in critical cases of wasted time and decreased productivity, also addressing some issues of Brazilian labor law regarding the topic.
The use of personal cell phones and the internet are at the top of the list of the 10 habits that most compromise the productivity of professionals in the workplace . To solve this problem, practical and complementary measures are necessary, ranging from good guidance for employees regarding the use of devices and the internet; monitoring of activities, achievement of goals and delivery of results by employees and teams; to the use of IT services that allow the creation of rules on what can or cannot be accessed on the internet by employees and generate reports regarding browsing within the company's corporate network.
Nowadays, it is common for professionals to use their cell phones and access email or social media accounts with their personal accounts in the workplace, which can generate numerous problems for both professionals and companies.
Even though this is a common practice in companies today, Brazilian labor law makes no mention of rules regarding the use of devices or the internet in the workplace, nor of possible penalties for doing so.
Therefore, it is important that companies define guidelines in their internal regulations to govern the use of these resources, describing what can or cannot be accessed, under what circumstances their use is possible, and what penalties are applied to those who violate company rules. A template document on technology usage policy in corporate environments for implementation in your company. There is also a specific template document on the company's mobile phone usage policy .
In this context, companies rely on the protection of the Consolidation of Labor Laws (CLT), where article 482 lists the possible grounds for dismissal for just cause, with letter "e" being " negligence in the performance of respective duties ". In this case, negligence corresponds to carelessness in fulfilling the duties performed. Therefore, simple and common actions nowadays, such as answering phone calls, accessing social media profiles, or even looking at and sending messages via WhatsApp or Messenger, characterize negligent behavior that diverts the necessary attention that the employee should have to perform their pre-established activities in the company.
We can cite several examples of scenarios where the use of cell phones or the internet can be characterized by a lack of commitment or carelessness in the activities performed, such as telemarketing companies, where the activity requires exclusive attention and any distraction can harm customer service. Or, accounting offices where the team spends practically all their working time performing customer service and operational activities via computer.
In cases where an employee has received a warning and yet continues to repeatedly access their cell phone or engage in personal activities online, resulting in wasted time and impaired performance of their duties, this constitutes indiscipline and even insubordination. These points are addressed in letter "h" of article 482 of the CLT (Brazilian Labor Code), which refers to " acts of indiscipline or insubordination ." This can also result in dismissal for just cause.
Other points that may be covered by the CLT (Brazilian Labor Law) include the possibility of an employee disclosing photos, videos, or messages via social networks and communication systems that could compromise/damage the image of the company's clients or colleagues, as well as the disclosure of confidential data from other companies that have a commercial relationship with the company in question. For these cases, we have clauses "j" and "k", which address, respectively, " acts that harm the honor or good reputation of any person committed in the workplace, or physical offenses under the same conditions, except in cases of legitimate self-defense or defense of others " and " acts that harm the honor or good reputation or physical offenses committed against the employer and hierarchical superiors, except in cases of legitimate self-defense or defense of others ."
On the other hand, we have situations where employees' working conditions are related to their motor skills, and any lapse in attention can result in workplace accidents. For example, activities such as operating machinery, driving, and others. In these cases, prohibiting the use of cell phones is strongly recommended, as any accident can cause physical and property damage.
The reality is that we are going through a period of great social and professional change, mainly caused by access to information. New developments, technologies, concepts, and tools are constantly emerging, impacting the daily lives of professionals and companies and completely changing the way we work. This should prompt some action from the Legislative Branch, especially in the area of labor law. Unfortunately, this is not yet happening in Brazil. Therefore, there is a need to continue following existing, and in some cases obsolete, norms in the application and judicialization of labor laws.
This demonstrates that the Judiciary has been deciding labor lawsuits without existing regulations for such circumstances, as is the case with the use of cell phones and the internet for personal activities in the workplace. This generates a legal framework, based on fundamental constitutional principles and social rights, that differs from the regulations stipulated in the Consolidation of Labor Laws.
Therefore, there is no impediment to applying labor law and the CLT (Consolidation of Labor Laws) regulations in cases related to the use of technology at work that result in losses for the company. However, in a country where legislation is the basis for any judicial decision, it would be important to have changes in labor laws to address these specific scenarios.
And you, what do you think about the legislation and the behavior of managers regarding the use of cell phones and the internet in the workplace? How is this topic addressed in your company?
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