Canada: BYOD Policies: Practical Considerations

Last Updated: December 19 2014

As the workplace practice of BYOD (bring your own device) is starting to hit the mainstream, organizations are being pressed to consider the legal risks of BYOD and how to address these risks through appropriate BYOD policies. Some organizations have been turning a blind eye to employees accessing corporate networks through personal smartphones and are sometimes surprised to learn how pervasive that practice has become. Organizations are well advised to carefully think through the issues and develop an appropriate BYOD policy.

Most organizations have had policies dealing with remote access via home computers for quite some time now. Likewise, information security policies that address security risks associated with "corporate-owned" smartphones are not new nor are policies that deal with appropriate use of PCs in the workplace. These policies provide a valuable foundation for BYOD policies, which need to focus on the special risks posed by mobile devices that are employee owned.
This bulletin sets out some of the issues that an organization should consider when developing its BYOD policy. 

CONSISTENCY WITH OTHER CORPORATE POLICIES 

It is important that an organization's BYOD policy is consistent with and integrates with other corporate policies. For example, information security policies, document retention policies, acceptable use of computer resources (including email and Internet use), compliance and ethics, litigation holds, social media, harassment and discrimination, and employee privacy policies are likely to be relevant. Employees should be reminded of their existing obligations under each of these policies when introducing a BYOD policy.

SCOPE OF BYOD PROGRAM

An organization's BYOD policy should identify what devices will be included in the BYOD program, who in the organization will be entitled to participate in the BYOD program, how many devices each participant may have in the program, what the approval process for those wishing to participate in the BYOD program will be, what support the organization will provide in respect of devices and to users of those devices and, of course, the financial aspects of the organization's BYOD program. Consideration should be given to whether the organization would offer an alternative company-owned device for those employees who do not wish to participate in the BYOD program.

The input of the organization's human resources (HR) function on these types of issues is essential. One of the driving forces behind BYOD programs is employee satisfaction. BYOD programs are largely viewed by employees as an employee benefit. As with any other benefit, the organization's HR function should be aware of what its competitors are doing in respect of BYOD programs and what the organization's employees would prefer.

It is important for the organization to keep an up-to-date inventory of participating devices. This allows the organization to keep track of who is in possession and control of what kinds of business information and where that information resides – all essential for good data management within an organization.

PRIVACY CONSIDERATIONS

In Canada, privacy rights are recognized through the patchwork of privacy legislation that imposes different obligations on employers depending on the nature of the employer and the jurisdiction of employment. In addition, regardless of whether privacy legislation applies, courts and arbitrators have increasingly recognized certain rights to privacy under the common law and in unionized workplaces. 

Balance. Given the requirements of privacy legislation, as applicable, and other recent developments in the law, most Canadian employers will have obligations with respect to their treatment of employee personal information in these circumstances. However, even if employees have an expectation of privacy when using a mobile device, that right is not unlimited. An organization must balance an employee's expectation of privacy against the organization's legitimate business need to manage and control its business information. An organization's HR, information technology (IT) and legal functions will all be stakeholders in decisions relating to the right balance for the organization. 

Good Practices. Prudent organizations will take steps to ensure that their liability collecting employee personal information (and their potential vicarious liability for when their employees breach the privacy rights of others) is limited. An organization's BYOD policies and practices may include a consideration of the following privacy practices:

  • Limiting Collection. If there is a technological or other method of limiting the collection of any employee personal data from the personal mobile device, these should be considered.
  • Limiting Disclosure. Only authorized personnel should have access to the personal information collected from mobile devices. Safeguards should be put in place to limit unintentional or unauthorized disclosures of personal information. Policies should also notify employees to whom the information will be disclosed, including potentially to law enforcement agencies when a breach of law is suspected. In addition, if applicable, query whether there is a legal requirement to notify employees when their personal information will be transferred outside of Canada.
  • Consent and Notification. Consider whether express consent is required or recommended. In all cases, organizations will want to implement a means of clearly notifying employees of the potential collections, uses, disclosures and monitoring of personal information, and the purposes of such collections, uses, disclosures and monitoring.
  • Expectation of Privacy. Employees should understand what expectation of privacy they should have when using a personal mobile device that is subject to the BYOD policy, and should understand what monitoring the employer will conduct. In order to effectively manage an employee's expectation of privacy and any consent requirement, an organization will need to be very clear – through not only its policies, but also its practices – about the circumstances under which and the purposes for which the organization may monitor employee device usage and what uses the organization may make of information that it accesses, views or collects.

SECURITY-RELATED CONSIDERATIONS

An organization's BYOD policy should set out any security-related requirements or practices relevant to participating devices and users. The primary focus here is preservation of the confidentiality of the organization's business information while recognizing the privacy of any personal information within the possession or control of the organization.

Security Controls. The participation of the organization's IT function is essential to avoid data leakage. For example, decisions will need to be made regarding what user authentication protocols should apply to participating devices and users, what data encryption protocols should be mandated in order to protect business information that is stored on the device and that is transmitted to and from the device, and what antivirus protection measures should be implemented. 

Restrictions on Apps. The organization's IT function will also need to consider what controls or restrictions are appropriate in relation to apps used by participating users for business purposes. Prudent organizations will often do their due diligence on apps before approving them for business use to ensure that the apps do not compromise the security or integrity of business information. 

Restrictions on Clouds. Organizations need to know what "clouds" their business information resides in and whether the information in those clouds is subject to reasonable and appropriate security safeguards, taking into consideration the nature of the information being stored and the organization's legal obligations – whether under statute or pursuant to its contractual obligations. The fact that ownership of the device resides with the employee should not change this.

Responsibility. The BYOD policy should reflect whether the organization or employee will be responsible for the implementation of any such security-related requirements or practices. If the employee is responsible, the organization should consider what resources should be made available to the employee to enable the employee to implement any such requirements or practices.

REMOTE WIPING

The one issue that organizations find very challenging relates to the practice of "remote wiping." When an employer-owned device is lost or stolen, it is fairly standard practice for the organization's IT function to wipe the device of any data to ensure that data does not fall into the wrong hands. While employees may not be happy about losing personal data they have stored on the device, they tend to understand as the device is an asset of the company. 

However, when the device is the employee's own device, the employee may view any wiping of his or her own personal data from his or her personally owned device as excessive. Accordingly, at a minimum, an organization's BYOD policy should make it clear that loss of personal data – whether in the context of remote wiping or in connection with any monitoring, support or other activities of the organization – is a possibility in the event a device is lost or stolen or upon termination of an employee's employment. Organizations should speak to qualified employment law counsel to discuss whether it may be required or worthwhile to adopt the additional step of having employees sign waivers under which the employee expressly consents to the wiping activities and releases the employer from any liability arising from such activities. 

In addition, organizations should note that there are a number of technical solutions on the market that allow personal data on a device to be segregated from an organization's business information such that the organization's business information can be wiped from the device, without disturbing the employee's personal data.

MONITORING AND NON-COMPLIANCE

Monitoring. The BYOD policy should reflect the fact that the organization may monitor an employee's use of his or her device from time to time and state what expectation, if any, the employee should have. Consideration should be given as to whether to differentiate between monitoring of the business-related data on the device, as well as the personal data on the device. The BYOD policy may also set out who would be conducting the monitoring, to whom information on the device may be disclosed, and the purposes of the monitoring and of any collections, uses and disclosures of the personal data on the device.

Consequences of Breach. The BYOD policy will specify the organization's expectations regarding an employee's use of a device. It should also set out the disciplinary and other actions that may be taken when an employee does not comply with those expectations.

OTHER EMPLOYMENT CONSIDERATIONS

Overtime Claims. The implementation of BYOD policies and programs may tend to blur the line between work and personal life. Organizations must consider whether the use of mobile devices in general increases their risk of overtime claims for off-the-clock work performed by employees.

Leaves of Absence. Organizations must consider whether it is appropriate to allow employees on extended leaves of absence to continue to have access to company systems through their personal mobile device.

Reimbursements. Organizations will generally wish to modify existing expense reimbursement policies or to outline the expenses related to the personal mobile device that the organization is willing to cover in its BYOD policy.

Training. A BYOD policy will have little impact or enforceability if the employees are not made aware of the policy and provided with some training on the terms and conditions of the policy.

Consistency. As with all employee policies, the terms and conditions of the policy should be applied consistently to all employees who participate in the BYOD program.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
In Association with
In Partnership with
Other Canada Advice Centres
Competition and Antitrust
Mergers and Acquisitions
Labour and Employment
More Advice Centers
Significant Recent Cases
A list of the most recent and notable Blakes cases that gives you an overview of the firm's depth of knowledge and experience.
Useful Resources
Organizations should take preventative steps prior to a breach occurring by having reasonable policies and procedural safeguards in place, and conducting necessary training.
This checklist is intended to help organizations take the appropriate steps in the event of a privacy breach and to provide guidance in assessing whether notification to affected individuals is required.
Organizations subject to the Personal Information Protection Act (PIPA) are required to report a breach of personal information to the Commissioner.
An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.
Designed as one of the most stringent anti-spam regimes in the world, the legislation imposes important restrictions on the use of electronic messages to encourage participation in commercial activities.
Upcoming Events
Our professional development seminars provide legal and other professionals with access to programs that have been accredited by those governing bodies in various jurisdictions across Canada that have set educational credit requirements.
Tools
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.