Thursday, August 28, 2014

Beware the Perils of BYOD

[As many lawyers and HR professionals know, California is a whole different world when it comes to employment law and employer-employee relationships.  Our Golden State colleague Sarah Mott has agreed to write a special ELNavigator column for us that highlights developments and issues important to employers with workers in California. If you’ve got California on your mind, watch for this feature every month or so]

How many of you and your key employees use personal smartphones and tablets to answer work-related phone calls, manage your calendars, communicate by email or text about work?  I thought so.

Whether it’s a budget issue or a personal preference, a recent California case creates yet another reason to carefully consider the wisdom of a Bring-Your-Own-Device (“BYOD”) practice.

In Cochran v. Schwan’s Home Service, Inc., the Court of Appeal in Los Angeles held that employees who are “required” to use their personal cell phones are entitled to reimbursement of “some reasonable percentage” of the costs under Labor Code 2802, which requires employers to reimburse employees for all necessary expenditures incurred in carrying out their job duties.  The amount paid must have a relationship to the amount of phone use (i.e., not just a flat percentage).  The decision did not discuss data usage, but there’s no reason to think the courts would treat that or internet plans any differently if (when) the issue arises.

So if you’re operating in California and you have a BYOD policy, put it in writing.  Generally limit it to exempt employees, and make it voluntary.  Emphasize the importance of security and be very clear about what activities are permitted on personal devices that access work systems.  Inform employees that use of their personal devices for work could affect the privacy of any information contained on that device.  Finally, address what happens if the smartphone is lost and whether personal data could be locked and/or destroyed under some circumstances.  And pay up!

Posted by: Sarah Mott