BYOD: Where the Employee and the Enterprise Intersect

The proliferation of bring your own device programs – or “BYOD” as it is commonly referred – has drastically changed today’s corporate workplace environment. Employees are availing themselves of smart phones, tablets, and other personal handheld devices to perform the duties that encompass their employment. With more prevalent use of personal devices for work related activity, “an organization must think beyond technological challenges; it must address business policies, management processes and governance as well.”[1]

Among the myriad of challenges faced by employers are the potential complications that arise where the line between personal and professional usage obscure. Protection of confidential client information is of utmost importance, along with protection of trade secrets. What happens when an employee who works with sensitive client information on his or her personal device is let go? What happens when an employee working with confidential work-product loses his or her personal device? When rolling out BYOD programs, organizations should establish a baseline security policy. This policy should include passwords for all personal devices used for business purposes, and remote lock and wipe functionality.[2] Mobile device management software such as remote wiping should be restricted to work-related information.

Employers must be upfront and specific about what employees can expect with regard to the privacy of their personal information.[3] When rolling out BYOD programs, employers should craft an acceptable use policy that takes into account privacy concerns, under both state and federal privacy laws.[4] Lazette v. Kulmatycki[5] is a recent case that illuminates the problem with employer overreach into personal information. In Lazette, a Verizon employee claimed that her supervisor accessed more than 48,000 personal e-mails on her company-issued Blackberry, which she was allowed to use for personal email. The employee returned the Blackberry to the company upon her termination.[6] However, the employee’s supervisor failed to delete the personal information stored on the employee’s phone.[7] The supervisor then accessed and disclosed the employee’s personal email messages to third parties.[8] Once the plaintiff found out about this unauthorized use, she immediately filed suit.[9] The court held that the employer was not authorized to access a former employee’s email simply because the company issued the device to the employee.[10] In other words, a company-issued device does not automatically grant the employer access to the employee’s personal e-mail. The court further held that the Stored Communications Act (SCA)[11], applied to this case. Therefore, the supervisor could be liable, and the employer may also be vicariously liable. The Lazette case illustrates the need for a strong BYOD policy that spells out the precise boundaries of what an employer will and will not do with regard to personal information.

What does this mean? It means that along with crafting a robust acceptable use policy, organizations should examine current BYOD policies to ensure that employees are given clear and precise notice, as the court stated in Lazette. Next, organizations should have clear cut policies describing the times when access to personal information might be appropriate. Last, organizations should otherwise restrict access to employee’s personal information to instances where informed consent has been given.

The following excerpt is a fill-in-the-blank sample form of two of the most important sections of a BYOD policy: Expectation of privacy and accessing services on BYOD

Expectation of Privacy: [SAMPLE COMPANY] will respect the privacy of your personal device and will only request access to the device by technicians to implement security controls, as outlined below, or to respond to legitimate discovery requests arising out of administrative, civil, or criminal proceedings (applicable only if user downloads company email/attachments/documents to their personal device) . This differs from policy for company owned equipment/services, where employees do not have the right, nor should they have the expectation, of privacy while using company equipment or services. While access to the personal device itself is restricted, [SAMPLE COMPANY] Policy regarding the use/access of company e-mail and other company system/service remains in effect. If there are questions related to compliance with the below security requirements, the user may opt to drop out of the BYOD program versus providing the device to technicians for compliance verification.

  1. Accessing [PRODUCT NAME] (e-Mail/Calendar) Services on BYOD
  3. Use of [Company Owned Mobile Management Tool] Applications

·            As a default, [Company Owned Mobile Management Tool] will be enabled to perform an e-mail wipe on the phone after 10 password failed attempts;

·            If the device is lost or stolen, the user will notify the [SAMPLE COMPANY] Help Desk ([COMPANY HELPDESK PHONE] or [COMPANY HELPDESK EMAIL]) within one hour, or as soon as practical after you notice the device is missing. [SAMPLE COMPANY] will lock the device, e-mail on the device will be deleted, and [Company Owned Mobile Management Tool] services will be deactivated;

·            Users must comply with all [SAMPLE COMPANY] password policies, including use of strong passwords, password expiration (6 months), and password history (3).

·            [SAMPLE COMPANY] reserves the right to terminate company-provided [Company Owned Mobile Management Tool] services for non-use. The policy for terminating [Company Owned Mobile Management Tool] services is 30 days.[12]

Employees should be fully aware of the range of actions an employer will take to protect its data, and this should be communicated clearly through the BYOD policy. A robust BYOD policy should have the following elements: 1) require employees to follow security protocols; and 2) inform employees of instances when personal information might be accessed and when it will not be; and 3) require consent to remote wipe procedures in cases of lost, stolen, security breach or termination.

Another concern for BYOD policies is off-clock work. Providing non-exempt employees with mobile devices or using their personal device for work related email while off the clock, can bring about more serious overtime issues.[13] One way to ameliorate these issues is to restrict server access after work hours.[14] Another way to solve the problem would be to limit the BYOD program to exempt employees only; thus, eliminating altogether concerns of non-exempt employees.[15]

Organizations should create a BYOD plan based on their company’s needs and goals. This policy should be clear and precise. Employers should then have their employees sign off on the policies. Lastly, organizations should continue to monitor court decisions with regard to BYOD employee privacy expectations in the workplace and continuously update BYOD policies with the ever-changing state of technology and communication devices.

[1] Sam Ganga, “BYOD: Six Tips for a Successful Implementation” http://www.datacenterjournal.com/it/byod-tips-successful-implementation/ (last visited March 15, 2014)

[2]Forrestor Consulting, “Flexible Workforce Environments Require a Mobile Workplace Management Strategy, November 2013, available at http://www.business.att.com/content/whitepaper/flexible_workspace_env_req_mwm_strategy.pdf

[3] Nancy M. Barnes, BYOD: balancing employee privacy concerns against employer security needs http://www.lexology.com/library/detail.aspx?g=1109490a-6895-40f0-a7a3-afc714316165 (Last visited March 15, 2014)

[4] Id.

[5] No. 3:12CV2416, 2013 WL 2455937 (N.D. Ohio June 5, 2013)

[6] Paul Mollica, Blog. http://www.employmentlawblog.info/2013/07/lazette-v-kulmatycki-no-312cv2416-2013-wl-2455937-nd-ohio-june-5-2013.shtml (last visited March 17, 2014)

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] 18 U.S.C. § 2701, et seq.

[12] BYOD Policy available at http://www.tsif.com/DL/Sample%20BYOD%20Policy.dotx

[13]Bridget Webb, “BYOD and Non-Exempt Employees”, March 26, 2013 http://redeapp.com/byod-and-non-exempt-employees/ (last visited March 17, 2013)

[14] Id.

[15] Id.

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