Essential BYOD Legal Considerations
Understanding how the courts see communications conducted via personal devices for work purposes is growing in importance as the BYOD trend continues.
Many legal concerns surface when implementing a BYOD program. Recent court decisions, however, offer a blueprint for avoiding some of the more common pitfalls.
Device wiping, for example, is a crucial issue to consider. If business data is not stored separately from the user's personal data, the employer's only option is to wipe the entire device clean. But personal devices, by their very nature, contain personal data, like pictures, emails and contacts -- and employers can encounter serious risks when they remove that personal property from an employee's device.
For guidance on device wiping, we can look to Rajaee v. Design Tech Homes, Ltd. In this case, a district court found that personal data stored on an iPhone is not protected by the Electronics Communications Privacy Act (ECPA). However, the court did not rule on the plaintiff's state claims, which included violations of the Texas Theft Liability Act, negligence and conversion. Given this, the employer is not in the clear yet.
Closely related is the issue of privacy. In Garcia v. City of Laredo, Tex., a former police dispatcher claimed her cell phone was accessed without her permission while in an unlocked locker in the Laredo Police Department. The lawsuit was premised on violations of the Stored Communications Act (SCA), which outlines privacy protections for email and other digital communications stored on the Internet. Here, however, the district court relied on an earlier decision by the Fifth Circuit Court of Appeals in determining that the SCA "does not apply to data stored in a personal cell phone."
Along those lines, in Lazette v. Kulmatycki, a former Verizon employee (Lazette) alleged that her former supervisor read thousands of her personal email messages (some of which she had never opened herself) by accessing the corporate-owned BlackBerry device she had recently turned back in to the company. In ruling on a motion to dismiss, the court emphasized the email account -- not the device itself -- was subject to the SCA, so denied the motion regarding the violation related to the unopened emails (those first opened by the supervisor), as they were on the email provider's servers and, therefore, in "electronic storage" before being opened.
In the event of a lawsuit, companies may be required to produce records, including employee emails and text messages. Courts take a strong stand if that property -- or electronic information -- is destroyed or otherwise not produced. In Small v. Univ. Med. Ctr. of S. Nev., the special master appointed by the court to hear issues pertaining to discovery found the defendant failed to properly issue and maintain a litigation hold (a directive to preserve potentially relevant evidence). The devices under the defendant's BYOD policy alone resulted in the destruction of over two years of messages and other information. The relevancy of that data can only be speculated, but the prejudice to the plaintiffs was real, leading the special master to recommend that the court enter an order of default judgment in favor of the plaintiffs.
In terms of BYOD, though, no case has been discussed more than Cochran v. Schwan's Home Service, Inc. (read related post, Court Puts Employers on Notice About Mobile Use). In the class action case, the court, relying on Section 2802 of California's Labor Code, ruled that an employer must reimburse employees for the mandatory use of their personal cell phone for work-related purposes -- whether or not any additional expense is incurred by the employee.
While a court's ruling in one state is not binding on another state's court, these cases are instructive and, in some instances, involve a federal statute that is binding on every state. And while nothing can guarantee absolute protection from litigation, organizations that commit to employee education, openness, and diligence in their compliance processes will be less likely to see the inside of a court. To accomplish that, companies should seriously consider:
- Establishing a policy that separately addresses devices owned by the company and those owned by the employee (BYOD)
- Employing a user-friendly Web platform for self-service enrollment, registration and policy acceptance
- Paying employees a subsidy for use of their own personal devices
- Relying on BYOD experts to help develop the policy and manage the program
Josh Bouk is Vice President of Sales and Marketing for the Expense Management Division of Cass Information Systems.