V.33 Symposium (Technology in the Workplace) – Recap of Panel No. 1: Bring Your Own Device “BYOD” Policies

By: Lindsay Korn

 

IPhones, as explained by Jeffrey M. Schlossberg, are not just cellphones, but are actually computers.[1] Schlossberg noted that in today’s day in age, iPhones are “a million times more powerful than a desktop.”[2] In the workplace, many employees link their smart phones with their work email addresses, leaving work every day with confidential and proprietary material.[3] Though companies used to buy phones that were company owned and controlled, many employers stopped these purchases because employees were buying their own, more updated, phones.[4] Mr. Schlossberg went on to explain the “D” portion of the “BYOD” (Bring Your Own Device) Policy. Devices include phones, tablets, laptops, flash drives, or any other portable device that you can leave work and bring back to work.[5]

When employees use their own devices, employers found that their employees are more productive, are able to work at all hours of the day, and are able to maintain a better work-life balance.[6] However, there are a number of concerns and problems with an employee bringing his or her own device to work. For example, “one bad swipe” and you can accidentally send out highly confidential company information to a competitor.[7] IPhones also add a wrinkle to the employer litigation practice since they are easy to lose, can be easily stolen, and can be used as evidence for workplace harassment.[8]

In addition, non-compete agreements are now impacted by BYOD policies. For instance, when an employer sues an employee who works for a competitor despite signing a non-compete agreement, a judge will ask the employer why they didn’t want the employee working for the competitor and what steps they took to ensure the information was kept confidential from a competitor.[9] Before the growth of technology, an employer could successfully argue that they took adequate steps of keeping information confidential by locking their file cabinets.[10] However, if an employer allows its employees to use their own devices and they do not have a BYOD policy, it’s more difficult for the employer to argue that they have taken adequate steps to ensure the protection of confidential information.[11]

After Mr. Schlossberg set the stage of why the BYOD policy is an issue for employers, Orly Lobel continued the conversation with a focus on the impact of intellectual property when an employee uses a personal device.[12] For example, programming on one’s own device versus programming on a company’s device can make a difference in litigation when determining who owns intellectually property.[13] Ms. Lobel suggested that employers, or even state laws, should implement company policies to establish what is proprietary.[14] California Labor Code, for instance, has a statute that explains that if an employee creates something on his own time, on his own equipment, then as a matter of public policy, it is his property.[15]

Next, Robert T. Szyba discussed how BYOD policies impact litigation procedure.[16] In discovery, for instance, it becomes an issue of determining which devices must be turned over. Mr. Szyba argued that an effective BYOD policy would include some provision that gives an employee the obligation to comply with discovery requests for their devices.[17] Mr. Szyba also explained the potential problem of a personal device that has “smoking gun” evidence.[18] Such a device may get lost or destroyed accidentally or the employee may just get a newer version of the phone and not think twice about saving the original, incriminating phone. In addition, depending on the state, a potential pitfall for BYOD is the impact on attorney-client privilege. For instance, when personal e-mails are sent via a company computer, there is an issue on whether such communication is privileged.[19]

Andriette Roberts concluded the panel and explained the issue of employee privacy rights with BYOD, wage and hour issues, and the importance of having a BYOD policy.[20] If an employer hires an employee as a driver, for example, and uses a GPS to track where the employee goes, this may infringe on the employee’s privacy.[21] If the employer discovers through the GPS that the employee is travelling to improper locations and fires the employee, the employee may rebut with a privacy defense.[22] In addition, courts are starting to award Fair Labor Standards Act (FLSA) damages for off-the-clock time spent by employees for job-related phone calls.[23] Ms. Roberts suggested that the best practices for employers would be to implement BYOD policies that, for example, state that employees have “no reasonable expectations of privacy.”[24] These BYOD policies should also specify time spent responding to e-mails or phone calls and other off-the-clock work.[25]

[1] Jeffrey M. Schlossberg, Principal, Jackson Lewis P.C., Speaker at Hofstra Labor & Employment Law Journal Symposium Technology in the Workplace (Apr. 15, 2016).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Kerry Doyle, What BYOD Has To Offer: Benefits and Pitfalls, FORBES, (Nov. 14, 2013), http://www.forbes.com/sites/xerox/2013/11/14/what-byod-has-to-offer-benefits-and-pitfalls/#65f05b161e46.

[7] Schlossberg, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Orly Lobel, Don Weckstein Professor of Labor and Employment Law, University of San Diego School of Law, Speaker at Hofstra Labor & Employment Law Journal Symposium Technology in the Workplace (Apr. 15, 2016).

[13] Id.

[14] Id.

[15] Id.; Cal. Lab. Code § 2870.

[16] Robert T. Szyba, Associate, Seyfarth Shaw LLP, Speaker at Hofstra Labor & Employment Law Journal Symposium Technology in the Workplace (Apr. 15, 2016).

[17] Id.

[18] Id.

[19] Holmes v. Petrovich Development Co., 191 Cal. App. 4th, 1047, 1051-2 (Cal. Ct. App. 2011) (holding emails sent on a company computer were akin to consulting a lawyer in the employer’s conference room, in a loud voice, with the door open, and thus the communications were not privileged); but see Stengart v. Loving Care Agency, Inc., 201 N.J 300, 314 (2010) (holding that emails sent on a company computer via the employee’s password-protected, personal account are subject to attorney-client privilege). Mr. Szyba illustrated that if an employee in New Jersey, for example, wanted to sue her employer for pregnancy harassment and used her personal Yahoo email address on a company laptop to email another attorney about suing the employer, there is an expectation of privacy. Szyba, supra note 16.

[20] Andriette A. Roberts ’09, Associate, Morgan, Lewis & Bockius LLP, Speaker at Hofstra Labor & Employment Law Journal Symposium Technology in the Workplace (Apr. 15, 2016).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

 

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