August 13, 2014 Articles

Technology and Employee Privacy Concerns: The Current State of Uncertainty

BYOD policies raise a host of issues that both employers and employees should consider.

By Teresa D. Teare and Colin P. Glynn – August 13, 2014

On June 25, 2014, the U.S. Supreme Court issued a blockbuster manifesto on smartphone privacy in Riley v. California, holding that the rule permitting police to execute a search incident to arrest does not permit police to search the contents of an arrestee’s phone. Riley v. California, No. 13-132, 573 U.S. ___ (2014). Chief Justice Roberts, writing for a unanimous court, highlighted the unparalleled privacy issues created by the complexity and intimacy of the modern smartphone:

Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains, in digital form, many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

Justice Roberts succinctly pointed out the dangers and encroachments on personal privacy inherent in the government’s search of a smartphone. In doing so, the Court indirectly highlighted a growing, parallel crisis in privacy law in the workplace. Employer expectations often extend beyond the physical workplace, and work is performed through employees’ smartphones. This raises issues regarding whether and to what extent employers can gain access to information contained on these devices, especially when the device belongs to the employee.

Some employers have adopted bring-your-own-device (BYOD) policies to set forth the understanding as to what access an employee may have to provide the employer. There is scant law on whether these policies would infringe on employees’ rights, and such policies raise a host of issues that both employers and employees should consider.

In addition, a number of states have entered the dialogue to address employee privacy concerns specifically in the context of employer access to employee online and social-media accounts, and there is a growing patchwork of state laws on that issue. Ultimately, while the Supreme Court’s Riley decision involved a search by government agents, similar issues present themselves in the workplace and must be taken into consideration when accessing employee information.

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