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What are Your Digital Privacy Rights at Work?

"They’re watching me, aren’t they?"

Work Rights

Everyone should be concerned about digital privacy. But it’s not the CIA we’re worried about – it’s the boss.

Your employer has wide-ranging rights to your work emails and devices, and as our personal and professional lives merge, we need to know where the law stands.

We spoke to a Brian J. LaClair, a partner at Blitman & King, an employee benefits, labor, and employment law firm, to help make sense of our rights and our employers.

Just to be safe, maybe read this from your personal phone, ok?

Uncubed: There’s a new trend happening, especially in startups, where employees are expected to bring their own devices (BYOD) such as laptops and especially phones. Do companies have any rights to view company emails on these devices owned by employees? Why or why not?

LaClair: Company email accounts are the property of the company, not the employee, which means that companies generally may access emails and other information contained on their own system.

Because company email accounts are the property of the company, employees have no reasonable expectation of privacy regarding company email. This is usually true whether the employee accesses company email on company devices or their own devices.

If an employer gives you an option of keeping your phone rather than using a company issued one, would you recommend such an arrangement? Why or why not?

It all depends on how you value the convenience and flexibility involved with having one dual-use device versus protecting your personal privacy.

The more cautious approach would be to use company-issued devices for all non-private, work-related activities, and separate personal devices for all private, non-work-related activities.

However, for many employees, having two sets of mobile devices, tablets, laptops, etc., is unwieldy and not worth the added peace of mind vis-à-vis privacy.

If an employer helps to pay for a phone, do they have any rights to see how you use it?

Employers generally have broad rights to access company-owned devices and information contained on company-owned devices; however, agreeing to reimburse an employee for the use of his or her own device for work purposes does not necessarily render it the company’s device.

If the employee “owns” the device, i.e., the employee purchased the device and the account is in the employee’s name and maintained by the employee, the employer generally does not have the right to access the device, especially regarding non-work related information.

On the other hand, if you are using a company email or document system on your device, that system and the information contained thereon is the property of the company and may usually be accessed without your consent.

If you are using a work device, what expectation of privacy can you assume?

If you are using a company-owned work device, your expectations of privacy should be minimal. If the company owns and maintains the device, manages the account, and provides it to you to use for work purposes, it would be unreasonable to assume that you have significant privacy interests.

If you check your personal email on a work device, does a company have the right to see those emails for any reason?

While employers enjoy broad rights to access company-owned devices, that access is not without restriction.

For example, the federal Stored Communications Act prohibits, among other things, the intentional and unauthorized access of employees’ personal electronic communications, including those stored by web-based email providers.

Thus, unless the employee consents to such access, employer’s may not access personal email accounts that are password protected and otherwise intended to be personal in nature.

It’s more and more common for employees to merge personal and professional life including device use. What concerns, if any, do you have regarding this trend?

This area of the law is still developing and, unfortunately, not keeping up with the pace of technological advancements. As a result, the legislatures and courts have not provided us with clear guidelines as to what is and what is not legal in terms of BYOD policies.

While the safest play is to maintain separate work and personal devices, the reality is that most employees would prefer to have a single device or set of devices.

Do as much as you can to avoid the intermingling of work and personal information on the device. For example, use your work email account for work communications only, and your personal email account for personal communications only.

Also, understand that you are using a company-owned device as opposed to your own device, you should have less in the way of privacy expectations and consider the risks.

Finally, be aware of any company rules as they pertain to the monitoring and access of your information, and be wary of signing waivers that give the employer unfettered authority to access your information.

Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

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