I had an interesting telephone call today on the Free Legal Service Program that I run for the IIAG. The caller’s questions were good ones for which I could not provide definitive answers. They concerned what rights a former employer had to the information stored on a former employee’s smart phone.
Under Georgia law, in the absence of an agreement to the contrary, an employer owns all the information obtained by its employees about its customers or other business activities during the course of performing services on its behalf. I am not aware of any case law that applies this general rule to smart phones, PDAs, or other hand-held electronic devices, but it would appear that the general rule would permit an employer to require an employee to delete all such information from all such devices possessed by the employee.
But my caller then asked what about customers who have become personal friends of the former employee or who were friends or other social acquaintances before they became customers of the former employer. Does all the information about such persons stored on the former employee’s smart phone also belong to the employer because they are customers of the employer? Good question and one that could take a lot of time and expense to resolve in court.
Fortunately for me, the answers in this instance to the above questions became easier once I was informed that the former employer had purchased the smart phone for the former employee. In the absence of any agreement to the contrary, since the former employer owned the smart phone, it had the right to demand that the former employee return the smart phone to it after his employment was terminated.
Given the pervasive use of smart phones and other hand-held electronic devices in the workplace, serious consideration should be given by employers to drafting a policy or policies that address the above questions up front so there will be no need to resort to the courts to answer them later. At the same time, employers should consider drafting policies that govern their right to monitor and inspect all such devices used by their employees regardless of who may own them. Click here for an article that explores the latter subject in more depth.
If you’ve read this far to find out what BYOD means, it stands for Bring Your Own Device. Please share with me and my other readers any experiences you may have had with the above issues, especially how your agency may have addressed them.