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The Employee Smartphone Dilemma

Frequently, employers ask me about their employees desire to use their own smartphone rather than using the employer-provided phone. To the employee, it is a convenience issue. In some instances it is because the employer provides a phone (let’s call it “the work phone”) that was developed in the prehistoric era and the employee’s phone is far more versatile. In other instances the employee simply does not want to be burdened with carrying around two (2) phones. Some employers, when faced with this issue, take the approach that this is a “six of this and a half dozen of another” type of issue. It isn’t, and you shouldn’t treat it as such.

Before I get a bunch of emails from employees who start hating on me, let’s start with the following: I love my smartphone to the point where I probably need to be in a 12 step program. I get the issue of convenience and the frustration of having to deal with outdated technology. Now that we have that out of the way, let’s take a look at just some of the issues that come up when company information is put on an employee’s personal phone. The top three issues, and these aren’t the only ones, are regulatory compliance, protection and preservation of sensitive data, and prevention of harassment and discrimination.

Let’s start with the issue of regulatory compliance. If you work in the financial services industry or the healthcare field you understand there are rules and regulations that govern the confidentiality of information. Terms like Graham Leach or HIPPA are probably in your vernacular. In addition, many states, including Washington, have statutes that provide a legal cause of action for the careless disclosure of confidential information. That risk increases significantly when company data is on a private cell phone.

Putting aside the issue of regulatory compliance, there is also the issue of protection and preservation of your company’s sensitive information. If this isn’t at the top of your list, it should be. Customer lists, customer contact information, communications regarding accounts, and information concerning vendors and pricing are all information which your company, undoubtedly, holds as confidential and does not want to get into the hands of competitors. By allowing this information on your employee’s smartphone you’ve provided another avenue for the intentional or inadvertent release of confidential information. It is difficult enough to protect this information when it is on a company smartphone. It becomes highly problematic to protect this information when it is on the employee’s personal phone. Not only do you run the risk of information being transmitted to other individuals and/or being compromised when the employee is using their phone for personal pursuits (i.e. surfing porn sites), you also have the problem of retrieving this information from the phone when the employee decides to quit. Even if this doesn’t happen, you have the issue of the phone upgrade. As many of you know, cellular carriers provide promotions to encourage customers to upgrade to the latest technology. When this happens the phone is either traded in or is retained by the employee. In many instances, the data on the phone is not wiped and, as a consequence, you run the risk that data could be given to third parties. Speaking of data wiping, that leads to another issue which is the inadvertent destruction of evidence when a cell phone is traded in. Lawyers refer to the inadvertent destruction of evidence as “spoliation of evidence”. Essentially it means that you’ve destroyed information that could be used in litigation and, depending on the nature of the evidence destroyed, could result in court sanctions.

Finally we get back to the issue of harassment and discrimination. When information is on the company phone, and it is clear from your policies and procedures that the phone is to be used solely for company purposes, you are in a better position to regulate and respond to potentially harassing and discriminating conduct.

At the end of the day, it doesn’t matter whether you’re a fan of iOS or you’re a fan of Android. As the employer you have to sit down and balance the interests of your business against the convenience of using technology. It’s your business, you are the employer and you need to decide whether your employee uses the company provided phone, their personal cell phone, a landline, or smoke signals as a communication tool. You, as the employer, need to balance the interests of protecting your business confidences, the confidentiality of your clients, and protecting your business from claims of harassment and discrimination against the convenience to your employee. Hopefully this is a no-brainer.

Till next week,


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