From standard cell phones to smartphones to tablets an employer would be hard-pressed to hire someone who did not use some type of mobile technology on a regular basis. While having access to mobile devices is essential in today's workplace, allowing your employees to bring their own personal devices to work and use them for business purposes could lead to a number of potential risks. Before you give the green light to a blanket Bring Your Own Device (BYOD) policy, consider the following:
1. Wage and Hour Pitfalls
Having round-the-clock access to emails and phone calls can be a major productivity booster for employees, but allowing employees to use their own mobile devices at work can lead to wage and hour litigation and hidden costs. Should a situation arise where an employee uses his/her cell phone to send and receive work emails outside of the normal work day or while on paid time off, the employee could bring a claim against your company for minimum wage and/or overtime violations. If either a non-exempt or exempt employee were to initiate a collective or class action suit under these hypotheticals, then your business could be subject to costly litigation and exposure for all other employees who also may have used their personal electronic devices. This, in turn, raises the specter of unpaid regular wages, unpaid overtime, liquidated damages and the recovery of the class's attorney's fees and costs. For these reasons, it is important that you work with your HR team to consistently analyze and update all BYOD policies in order to prevent additional wage and hour claims.
2. Potentially Losing Your Trade Secrets
If your business depends on confidential information and trade secrets in order to generate revenue, BYOD policies can lead to a number of unwanted legal issues. By allowing employees to use their own devices for work, confidential information may eventually reside on devices and digital platforms to which you do not have access. If an employee were to resign and accept another job with a competing business, he or she could feasibly make a digital replica of all of the confidential information to which he or she had access and relay it to your competitors. To determine whether such risks outweigh the benefits of a BYOD policy, employers should assess the legal requirements for enforcing their confidentiality and non-disclosure agreements and common law and statutory protections.
3. Employee Privacy Infractions
BYOD policies can be a double-edged sword for employers in regards to privacy issues. Currently, technology exceeds the law in most states, leading to some grey areas when it comes to employees' privacy rights. The key to avoiding potential litigation is to properly communicate with your employees and have a clear understanding of the most recent laws. If you allow your employees to use their personal devices at work, make it clear in writing what is and is not accepted. As an employer, understand that monitoring email or social media accounts found on personal cell phones and/or insisting that an employee turn over his or her password for personal accounts could land your company in the hot seat. In order to prevent invasion of privacy claims and litigation, work with your HR team to review all of your BYOD policies to ensure that they are consistent with other workplace policies that might authorize your management team to access, monitor and review electronically stored information. If you think you need to access information on an employee's electronic device, check with your legal team first, prior to giving management any type of directives.
Originally published by Phoenix Business Journal on April 8, 2015.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
