Mixing Employees and Employer Telephone Use

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BYOD (Bring Your Own Device)
 policies are a very tricky idea for Texas employers. There is motivation to minimize costs by allowing, or requiring, employees to provide their own telephone, computer, or other devices to do work. This comes with a land mine of considerations related to ownership and access to data that are more fully described here.

The first court cases related to BYOD situations are coming out and they are, frankly, a bit clumsy. It is likely employee suites will build upon the mistakes of each case but that it will be a few more cases and a few more years before we have any real consensus regarding best practices for BYOD polices.

The most recent case, Rajaee v. Design Tech Homes, involved an employee who had 12 years of business contacts on his personal phone when he began working for Design Tech. When separated from the company, Design Tech remotely cleared his phone of all data, including personal contacts, photos, and appointments.

In Rajaee, the employee did not do a good job proving that he had the $5,000 in damages required under the Electronic Communications Privacy Act (ECPA) or the Computer Fraud and Abuse Act (CFAA); however, you can bet that future aggrieved employees will prove this up more properly. Rajaee also brought forward Texas Theft Liability Act claims and common law negligence and conversion charges. Those other charges were dismissed for technical reasons, which leaves employers without much guidance regarding best-practices.

It is important that employers make it clear to employees how you expect to address the interface of employee personal data and work data and what the employer may do upon termination. These employer policies may be articulated in a contract or by policy. Employers must also either decide to completely separate personal from work data, which may not be a realistic approach for all levels of employees, or acknowledge that their policies must change as quickly as technology.

The Lynch Law Firm can help you customize a policy that will address your budget, your data concerns, your work functions, and your company’s culture. Reach out to us to begin the conversation: 512.298.2346.


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