A Cell Phone, a Dead Woman, and a Fired Employee

Recently, the Tenth District Court of Appeals upheld a decision denying workers' compensation benefits to an employee who repeatedly violated company policy. In doing so, the court made it clear that employers have the right to regulate cell phone usage by their employees while on the job, even during emergency situations.

In the case State ex rel. Haywood v. Indus. Comm. (2013-Ohio-2658), Ms. Haywood’s cell phone usage not only cost her her job, but it also cost her some of her workers' compensation benefits. Ms. Haywood was employed as a cleaner for ABM. She was assigned to clean offices at Key Tower in Cleveland, Ohio. She had injured her lower back in the course of employment and, ultimately, her doctor certified that Ms. Haywood’s injury qualified her for temporary total disability benefits However, the Tenth District Court of Appeals disagreed and denied Ms. Haywood’s claim due to what had transpired during her employment.

While Ms. Haywood was employed by ABM, she had gotten in trouble for using her cell phone while on the job. She knew that using a cell phone — or even taking one into a work area — was a violation of company policy and could cause her to be fired. In the latter half of 2009, she was caught using her cell phone in one of the tenant offices in Key Tower. She was written up by her boss and warned that future violations could result in suspension or termination.

Approximately four months later, she was caught doing it once again. She was written up and again warned that future violations could result in suspension or termination. Approximately six months after that, she took her cell phone into a work area and plugged it into a wall outlet to charge. She was caught and given a three-day suspension from work. The fourth, and last time, she violated the policy was one week after she came off of suspension. As a result of that, her employment was terminated.

The twist to this situation, however, was that Ms. Haywood claimed that her cell phone usage was only a result of a family emergency. Because of that, she felt that she should be afforded greater leniency. The night that she was caught using her cell phone – the fourth time – was the same night that her daughter’s babysitter died. Unfortunately, the babysitter died while caring for Ms. Haywood’s teenage daughter. Further, the babysitter was the mother of one of Ms. Haywood’s co-workers. Ms. Haywood’s daughter attempted to contact Ms. Haywood through ABM but received no response. After that, she called her mother directly on the cell phone and Ms. Haywood answered while she was in a work area.

Though Ms. Haywood claimed that these emergency circumstances should result in some degree of forgiveness, ABM did not agree. The Tenth District backed up ABM. The violation, the court ruled, did not occur when Ms. Haywood talked on her cell phone during the emergency. The violation occurred the moment Ms. Haywood walked into her work area carrying her cell phone. This act, which occurred long before the emergency circumstances arose, was all that it took for Ms. Haywood to violate ABM’s policy.

The larger consequence of Ms. Haywood’s actions was the denial of her temporary total disability. The court held that Ms. Haywood’s decision to violate the company policy on four separate occasions meant that she voluntarily abandoned her position. Because Ms. Haywood voluntarily abandoned her position, she no longer met the eligibility requirements to receive workers' compensation. Because she was not eligible to receive workers' compensation, her claim for temporary total disability was denied.

Both the court and the Industrial Commission took pains to acknowledge the loss of the babysitter. They also acknowledged and appreciated how this affected Ms. Haywood’s 13-year-old daughter. But they also noted that Ms. Haywood would have violated the policy even if the death had not occurred. The mere act of taking her cell phone into the work area was all that it took.