It may be a new low for HR professionals: Monitoring bathroom use to determine whether employees are sneaking unauthorized smartphone breaks. In its zeal to recoup lost productivity, WaterSaver Faucet Co., a Chicago-based manufacturer of sink stations, has earned itself some embarrassing negative publicity and a visit from the National Labor Relations Board. Teamsters local 743 filed a complaint with the NLRB claiming the company unfairly disciplined 19 workers in June for “excessive use” of washrooms.  In July, the union staged a demonstration in front of the company’s River West headquarters to protest working conditions.

The conflict started when WaterSaver decided that its employees were taking excessive bathroom breaks. To make its case, WaterSaver documented that it lost 120 hours of production this past May because of bathroom visits outside of scheduled break times.  As of now it has no hard proof, but the company’s owner, Steve Kersten, believes that some of the breaks are really smartphone breaks disguised as emergency bathroom breaks. By policy the company bans cell phones from the factory floor.

The current union contract dictates a 7.5 hour workday, which includes a total of 60 minutes of break time: a 10-minute break in the morning, a 30-minute lunch break, a 15-minute break in the afternoon, and a five-minute cleanup period before the end of the shift.  Employees are expected to use these designated times, which occur approximately every two hours, to use the bathroom. 

Trying to manage the issue, last winter WaterSaver installed swipe card systems on its bathrooms. The cards allow access and track how much time is used. They do not track bathroom use during scheduled breaks.

Employees can use the bathroom anytime, but once bathroom use outside of designated breaks exceeds a certain amount, it is considered excessive and subject to disciplinary action.  The company defines “excessive”  as more than 60 cumulative minutes of unscheduled bathroom time in the previous 10 working days.

Of course, the union has spun this policy its own way, calling it a six-minute bathroom “allotment” per day. CEO Kersten insists it is not a per-day allotment; discipline only occurs when bathroom use exceeds the designated “excessive limit.” According to Kersten “our point of view is that anyone can go to the washroom when they need to but what bothers us is extended periods of time and multiple trips that cause lost productivity.” Kersten cited the example of one employee who used the bathroom six times in one shift, with one of the bathroom trips coming two minutes before the individual’s scheduled break.

WaterSaver has a traditional, step-based disciplinary process starting with verbal warnings and culminating in termination. So far no one has been terminated, but warnings have been issued. According to WaterSaver, it had no choice; it originally just asked employees to make better use of bathroom time, but that request, it says, was ignored.

The company even provides a financial incentive to reward infrequent bathroom use. A worker can earn a gift card worth up to $20/month (i.e., $1/day) for each day of not using the bathroom during work time. To date, a few workers have earned gift cards.

What does the law say about bathroom use? Under OSHA regulations, employers must provide restrooms for workers and permit reasonable access to bathroom facilities when employees need to use them. However, employers can set reasonable limits on restroom use. If a medical condition requires more frequent bathroom use, the employer may have to accommodate such an employee under the Americans With Disabilities Act.

In Zwiebel V. Plastipak Packaging, a production line employee was terminated for leaving his machine three times in one shift, once to use the bathroom. The employee later sued, claiming that the employer violated OSHA’s restroom standard. The Ohio Court of Appeals disagreed, stating:

While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.

When designing a restroom break policy, it is common sense to define reasonable restrictions on bathroom use, but equally sensible to review exceptions on a case-by-case basis. As for WaterSaver, it would appear to have a good legal argument based on the Zwiebel case.

Sources:  CNNMoney 8/5/14; The Chicago Tribune 7/10/14; Workforce 9/11/13, OSHA 29 CFR §1910.141(c)(1)(i).