bathroomVer la versión en español aquí

Employers have fairly wide discretion in terms of developing work rules designed to increase productivity and decrease time spent “slacking off.” But, if you believe the reports, one Chicago-based company may have gone too far.

Apparently, WaterSaver Faucet Company has been experiencing a decrease in employee productivity. The perceived root of the problem? Excessive bathroom breaks. So, what did the company do about the problem? It reportedly implemented a policy declaring excessive 60 minutes or more of bathroom time over 10 working days. Essentially, a 6 minutes per day rule.

To track bathroom usage, the company reportedly installed a tracking system that requires employees to swipe ID cards to access the bathroom.

It probably wouldn’t surprise you to learn that WaterSaver Faucet Company is unionized. Company employees have filed a charge with the NLRB concerning the company’s bathroom usage policy, alleging that union employees have been disciplined for excessive bathroom usage.

The company has explained that, under its current union contract, employees work a 7.5 hour workday, with a 10-minute morning break, a 30-minute lunch break, a 15-minute afternoon break, and a 5-minute clean-up period before the end of the shift. Plenty of time to use the bathroom without running afoul of the 30-minute per week rule? Perhaps – unless, of course, you dare to drink throughout the day, have a stomach ailment, are pregnant, etc., etc., etc.

Employee productivity is a valid concern, and many employers can verify that bathroom abuse does occur. Rather than jumping to install a time-keeping system at the bathroom door, however, it may be prudent to focus on individual job performance and lack of productivity. Avoid raising bathroom usage as the possible explanation for decreased productivity unless: (i) the employee raises the need to take prolonged bathroom breaks (which may trigger an ADA reasonable accommodation analysis); or (ii) you have factual information to back-up your belief that an employee truly is “chilling out” in the bathroom (maybe observed talking on a cell phone or sending text messages). This approach may prevent the backlash stemming from installation of bathroom time-clocks and decrease the risk of walking into an ADA issue.

I’m not entirely negative on WaterSaver’s bathroom usage policy. I’ll give credit where credit is due. The company reportedly offers gift cards of up to $20 per month to employees who don’t use the bathroom at all during working (non-break) hours. Great employee benefit, indeed.

One last note – The information that has been circulated about this story is, to a large extent, one-sided, and that’s the union’s side. So, I’ll take the story with a grain of salt until all the facts are known.

The American Bar Association is accepting nominations for the 100 best legal blogs. We would greatly appreciate your support in helping our blog make the list. Please consider casting your vote . Voting ends on August 8, 2014.