Bloomberg Law for HR Professionals is a complete, one-stop resource, continuously updated, providing HR professionals with fast answers to a wide range of domestic and international human resources...
By Ed Taylor
Dec. 14— A series of rulings by Brazilian labor courts have upheld the right of companies to prohibit the use of mobile phones by employees during working hours. The cases have involved situations where employees were terminated or suffered other penalties for using banned mobile phones and then appealed to labor courts. The courts have been unanimous in rulings dealing with such diverse issues as employee safety and industrial espionage.
In one case appealed to the superior labor court, an employee suffered a serious injury attempting to retrieve a mobile phone that had fallen on an industrial press. The employee sued the employer seeking damages and a lifetime pension. The company defended itself on the grounds that its ban on the use of mobile phones was based on safety concerns. In the court's unanimous ruling in favor of the company, justice Maria de Assis Calsing said that the employee's own statements indicated that “if it were not for her imprudent action, the accident would not have happened. In the face of these facts, despite the regrettable accident which occurred and the consequences which will follow her for all of her life, the only conclusion possible is that the guilt belongs only to the victim.”
In another case, a regional labor court rejected an employee lawsuit for moral damages in a case where the employee was ordered by company security guards to show pictures that he had taken inside the firm's production area. The company's argument, accepted by the court, was that the employee had used his mobile phone to photograph areas in which cameras were prohibited. According to the court, the employee's actions had provoked “a legitimate suspicion of industrial espionage.”
Even in more normal situations, the courts have ruled on the side of mobile phone bans established by companies.
The superior labor court in November maintained the termination of a call center employee who took his mobile phone to his work station despite a company ban. The court held that by ignoring the company's policy the employee had demonstrated “insubordination and lack of discipline.”
Attorneys told Bloomberg BNA that they have instructed companies to link their mobile phone bans to safety concerns.
“The cell phone can generate lack of attention which can put at risk the lives of the worker and other persons,” said attorney Tulio Massoni of the law firm Romar, Massoni and Lobo Advogados.
Massoni advises employers to protect themselves by including in employee contracts a clause establishing the company's policy banning personal mobile phones. The policy should also cover employer-provided mobile phones, Massoni said.
“There should be a requirement that company cell phones are strictly for professional use and can be monitored, and when the work contract expires the phones must be returned,” Massoni said.
Attorney Jose Carlos Wahle of the firm Veirano Advogados told Bloomberg BNA that some industrial sectors have included mobile phone bans in collective bargaining agreements on safety grounds.
To contact the reporter on this story: Ed Taylor in Rio de Janeiro at email@example.com
To contact the editor responsible for this story: Rick Vollmar at firstname.lastname@example.org
For more information on Brazilian HR law and regulation, see the Brazil primer.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)