Bring Your Own Device (“BYOD”) is a movement that is changing the IT landscape of workplaces. In a BYOD workplace, employees use their own mobile device—smartphones, tablets, laptops, etc.—for both work and personal use. Employees benefit from the dual use of a comfortable and known device while employers enjoy increased productivity and reduced technology costs. Sounds like a win-win? Not so fast.
Partitioning Work-Related Content from Personal Content?
Some employers have policies that allow it to wipe a device remotely if the device is lost or if the employee leaves the company’s employ. In Rajaee v. Design Tech Homes, et al., the company remotely wiped the iPhone of a sales rep when he resigned. This deleted all of the data—personal and work-related—and restored it to its factory settings. This ex-employee brought suit under the ECPA (which makes it illegal to intentionally access electronic information without authorization) and CFAA (which, among other things, makes it unlawful to cause $5,000 or more in damage to electronically stored information). This court rejected both claims, holding that the information in a cell phone is not “electronic storage” under the ECPA and that there was not a CFAA-qualified “loss” even though he lost all of his personal photos, videos, contacts and passwords.
Employers should review their BYOD policies and make sure that employees know the circumstances under which a device may be wiped. Further, many companies are partitioning work-related content from personal content on their employees’ personal devices so when an employer needs to remotely wipe a lost or stolen device, it will do so only the corporate side of the wall.
Which Employees Should Be Part of a BYOD Policy?
Allowing nonexempt employees to use their own devices to conduct work-related business can lead to those employees racking up overtime by doing work anywhere and at any time, and later raising wage and hour claims for off-the-clock work. For example, in Mohammadi v. Nwabuisi, an employer was found liable for not compensating an employee for overtime work performed on an employee-owned device.
In light of this decision and others like it, employers should consider either limiting BYOD to exempt employees or re-developing time reporting systems/policies so that all time worked, (including time spent responding to after-hour emails and calls) is captured and paid. White v. Baptist Memorial Health Care Corp., 699 F.3d 869 (6th Cir. 2012) (affirming summary judgment for employer because plaintiff failed to report time in exception logs; “[i]f an employer establishes a reasonable process for an employee to report uncompensated work time, the employer is not liable for non-payment if the employee fails to follow the established process”); Gaines v. K-Five Construction Corp., 2014 WL 28601, at *13 (7th Cir. 2014) (affirming summary judgment for employer; driver’s claims for pay for arriving early to perform pre-driving inspections insufficient where driver failed to properly fill out required forms to report extra time to payroll).
Reimbursing Your Employees for Their Devices?
While some employers partially reimburse their employees for using their personal devices for work purposes, recent studies show that the majority of employers do not. This is a problem, especially in California. In Cochran v. Schwan’s Home Services Inc., the California Second District Court of Appeal held that California labor law requires employers to reimburse employees who are required to use their personal cell phones for work-related purposes for a reasonable percentage of their cellphone bill. The court held that the reimbursement obligation is triggered even if employees do not incur any additional expense.
This may be a signal of what’s to come in other states given that California isn’t the only state with laws that require reimbursement for all necessary expenditures incurred by employees in discharging their work duties. Plus, even in states with no such statutes, the argument will be made that the absence of reimbursement is an impermissible wage deduction.
BYOD vs Litigation Hold?
BYOD complicates the e-discovery process because electronic data that may fall within the scope of discovery requests can reside on devices besides those over which the company has control. In the days before smartphones and cloud storage, receiving a litigation hold notice meant putting aside paper documents and turning off auto-delete on a custodian’s computer. Now, however, it requires much more.
In Small v. Univ. Med. Center of S. Nevada, an eDiscovery special master recommended “death penalty” sanctions on the defendant for failing to preserve data stored on mobile devices. The defendant failed to issue any litigation hold addressing BYOD devices despite the fact that several key employees confirmed that they used their personal mobile devices for work-related purposes. As a result, defendant lost over two years of messages and other ESI that were potentially relevant to the litigation. The special master declared the defendant’s conduct a “mockery of the orderly administration of justice,” and recommended that the court enter an order of default judgment.
Yesterday’s BYOD policy, in short, is as outdated as your uncle’s flip phone.