PEDs in the Workplace: It s a Mad, Mad BYOD World

PEDs in the Workplace: It s a Mad, Mad BYOD World

Technology in the Workplace Technology in the workplace has transformed over the years from this The World s First Computer (1946) 2015 Snell & Wilmer L.L.P.

Technology in the Workplace To this Apple II Micro Computer (1977)

Technology in the Workplace And now this Apple Watch (2015)

BYOD Statistics By the end of 2015, there will be over 2 billion mobile devices in the world. Between 70% and 90% of U.S. workers are using their personal smartphones for work purposes (estimates vary). Up to 70% of employees with smartphones regularly check their emails outside of normal working hours. 51% of employees have reported accessing unsecured wireless networks for work purposes. 80% of BYOD is completely unmanaged by employers.

You Don t Have a BYOD Policy? The risks of failing to adopt a clear BYOD policy:

Why Adopt a BYOD Program? Employee flexibility and freedom and recruitment tool Millennials expect to use personal smartphone as work device Avoid the two pocket syndrome 84% of employees use same smartphone for work and pleasure Reduce employer expense & enhance employee productivity 7

Confidentiality and Trade Secrets Because employees can access their work information from home, it has become much easier for employees to improperly take and utilize employer information for improper purposes. 8

50% of employees who leave their jobs retain confidential company info 40% plan to use their info in their new jobs 9

Uniform Trade Secrets Act Requires misappropriation Harder to prove when employer has granted employee access and permission to store on their PED Focus on improper use or disclosure Have a strong company confidential information policy 10

Social Networking Profiles Who owns them: employee or company? Some employees believe they own the Facebook and Twitter accounts they create on company s behalf If company doesn t have a policy that says otherwise, they just might be right 11

Wage and Hour Employers must pay nonexempt employees for all time worked, including overtime for hours worked over 40 hours in a week Employees are using their devices, sometimes for work, after hours. Are they recording that time as time worked? Is the employer liable? Employees are required to be given uninterrupted meal breaks. Are they checking their PEDs and doing work during those breaks? Is the employer liable? 12

Privacy Employers have the right to review companyowned devices and content. Historically, employers do not have the right to review employee-owned devices. Technology is outpacing the law. Where do we draw the line for an employer s right to access an employee-owned device that is connected to the employer network or has employer information on it? 13

Computer Fraud and Abuse Act Crime to gain unauthorized access to a computer. What about remote wiping? Without an employee s consent? Stored Communications Act Prohibits unauthorized access to email. Criminal statute with civil remedies. Employer access to employee Dropbox account? 14

HIPAA Requires employers to develop and follow procedures to protect confidentiality and security of protected health information (PHI). What happens if you allow employees to store such information on a laptop and that laptop gets stolen? One healthcare contractor was required to pay $288,000 when a laptop with unencrypted PHI was stolen. 15

GINA Employees prohibited from requesting or disclosing employees genetic information Employee has diabetes and uses an app to monitor her glucose levels. Employer, updating employee s phone, sees this data. Has GINA been violated? 16

Fair Credit Reporting Act Requires secure disposal of certain consumer information. If such information is stored on employees PEDs, what has employer done to ensure proper disposal? Could employer be liable for violation of FCRA? 17

Workplace Accidents Employee is driving to work from home. They are checking work e-mail on their smartphone and get in an accident. Is this now a workrelated injury? Employers need to have a policy that employees are not to do any work-related e- mailing or texting while driving. OSHA will investigate companies alleged to have required or encouraged employees to text while driving. 18

Discrimination/Harassment Issues Employees need to understand that discrimination and harassment policies apply to PED and internet use in the workplace. What happens when an employee views pornographic material on their own PED in the workplace? What happens when an employee posts harassing content on Facebook towards a co-worker during work hours? 19

E-Discovery Employers are responsible for obtaining and preserving all discoverable information Does that include information on employees PEDs? To a large degree yes. How do you enforce a litigation hold on an employee s cell phone? 20

NLRA BYOD policies must be reviewed to ensure that they do not infringe upon Section 7 rights. 21

Questions? 2015 Snell & Wilmer L.L.P. 22