Employee Use of iPads & Smartphones (United States)

This Wisdom of the Crowd (member discussion), addresses company employees' use of iPads, smartphones, etc., and the implications of this use to issues concerning privacy, possible litigation, and labor laws involving nonexempt workers. This resource was compiled from questions and responses posted on the forum of the Employment & Labor Law ACC Network.*

I. Personal iPads Used for Company Work

II. Personal iPads Used for Company Work - Employee Termination

III. Personal iPads Used for Company Work - Creating a "Wiping" Policy

IV. The iPad and Privacy V. iPad/Smartphone Content in Possible Litigation

VI. Policy on iPad/Smart Device Use in the Workplace

VII. Creating an iPad Policy for Equipment Purchased by the Company

VIII. iPad & Smart Phone Use After Business Hours - NonExempt Employees

IX. Additional ACC Resources to Consider

*(Permission was received from the ACC members quoted below prior to publishing their eGroup comments in this Wisdom of the Crowd resource.)

I. Personal iPads used for company work

Question:

How should companies handle employees who request that their iPads and other personal devices (iPhones, Blackberrys, etc.) be configured for use with the company's systems? (The concern is that they will have confidential and proprietary information on their personal devices.) What if they fund part of the purchase?

Wisdom of the Crowd:

Response #1:

• I would not permit any device to be connected to the company network or be used by an em[p]loyee for company business unless it was owned and controlled by the company. To do otherwise is fraught with risk to the company. The questions raised . . . below are the correct questions and lead to the correct answer - you cannot do it without creating significant risk to the company. It would be a litigation nightmare, a business/trade secret nightmare, etc.ⁱ
  

  Response #2:

  Develop a policy governing this use. See Electronic Information Systems Policy (Policy on iPad/Smart Device Use in the Workplace).

II. Personal iPads used for company work - employee termination

Question:

How should the company handle this once their employment is terminated, severed or otherwise ceased?

Wisdom of the Crowd:

Response #1:

• We have many employees who are requesting that we permit their iPads and other personal devices to be configured for use with the company's systems. We are concerned that they will have confidential and proprietary information and how to deal with that once their employment is terminated, severed or otherwise ceased for any reason. One option we are considering is developing a policy that warns we can wipe their device clean from a remote basis if they refuse to bring it in willingly upon employment termination, severance, etc. A remote wipe would clean off everything including their own personal items while bringing it in willingly will allow us to [] delete company specific materials only. Has anyone else dealt with a situation similar to this? Either way, any recommendations or sample policies would be greatly appreciated.ⁱⁱ
  

  Response #2:

  We have the same concerns: for short term mitigation we are automatically wiping PDA's where allowed by law, and high[-]level approval is required for using a personal PC and connecting it to the network. We are exploring virtualization solutions.ⁱⁱⁱ

  III. Personal iPads used for company work - creating a "wiping" policy

  Question:

  Let's say the IT and legal departments create a policy and process that allows them to "wipe" an employee's iPhone and iPad (both company paid and personal) within 24 hours after separation of employment - are there any reasons not to implement it?

  Wisdom of the Crowd:

  Response #1:

  • In order to be thorough, employees that may have printed out work documents and taken them home should also have their houses burned down by the IT department within 24 hours of termination.

    More seriously - this sounds like overkill as a generally applicable policy, unless every single employee has a high government security clearance. If that is the case - [employees] should be using a customized, high[-]security platform and devices. An admin [assistant] that uses his own i-device away from the office to do a better job or be available off-hours doesn't need the same sledgehammer solution [of] killing his contact list and [the] video of his kid's birthday party that might be appropriate for your top R&D scientist. I'd recommend a 2[-]tier approach - one for [employees] with truly highly sensitive materials and one for everyone else. The highly sensitive group should use only company issued and paid devices that must be returned or remote-nuked on termination.

    From a technical standpoint, standard i[OS] remote wipe can be avoided as easily as turning on Airplane mode.^iv

    Response #2:

    Any company wiping an employee's device may also be violating the Computer Fraud and Abuse Act. This is the [A]ct that makes it illegal for me to access someone else's computer without permission and has been used against employees who leave and take electronic documents with them. I wouldn't be surprised if this law applied against the IT department/company.^v

  IV. The iPad and privacy

  Question:

  How does your company balance the security concerns and privacy issues that come along with employee use of iPads (i.e., do you require waivers allowing the company to search the device if need be)?

  Wisdom of the Crowd:

  Response #1:

  • We take a number of precautions including:
    1. Require permission to wipe the device if need be[;] Prohibit certain back-up activities that could copy company data acquired when network access is active[;] Require permission to scan the device when network access is active (same as we would with a laptop)[;] Notify that all activity done through network access will be logged (same as we would with a laptop)[.]^vi

  V. iPad/smartphone content in possible litigation

  Question:

  Can iPads be considered company resources/systems, when cost is shared between the company and the employee? Further, is iPad/smart phone content auditable, and if so, how would this be done? Is this content discoverable and subject to a litigation hold, and how would that process work when the employee partly or completely owns the device?

  Wisdom of the Crowd:

  Response #1:

  • Even if the employee owns the device (which is the majority of instances at our company), we have the ability to audit and/or recover files while the device is connected to our network. We require employees to provide us with permission to do so in order to have any network access on the device. Otherwise, if they are not provided network access, it is treated just like any other laptop/personal device and employees are expected not to keep company data on it.^vii

  VI. Policy on iPad/smart device use in the workplace

  Question:

  Is there a policy from an ACC member concerning the allowance of an employee to access company computing/data systems with their own personal electronic devices?

  Wisdom of the Crowd:

  Response #1:

  • We take the approach that all messages and data created, sent or retrieved using Employer computers, or using personal computers for Employer business, are considered the property of the Employer, and not of the individuals who send or receive them. This includes messages and documents stored on the hard drives of any computer, cell phones, smart phones (i.e., data enabled), USB drives, external disks, or personal digital assistants (PDA) owned by either Employer or the employee, and any work-related e-mails, documents, and databases stored on an employee's home computer that have been sent or received in the course of Employer business. We reserve the right to review this data at any time. When an employee terminates their employment, all electronic products remain the property of Employer and may not be transferred or copied to the employee or any outside entity.^viii See Electronic Information Systems Policy (Policy on iPad/Smart Device Use in the Workplace of Goodwill Systems Policy).

  VII. Creating an iPad policy for equipment purchased by the company

  Question:

  What is the best way to structure a policy on sales staff usage or purchase of iPads for work? (The main concern is receiving reimbursement from the employee for loss and breakage of the equipment.)

  Wisdom of the Crowd:

  Response #1:

  • For that reason, employees can purchase themselves, but the company is not purchasing for sales staff- mainly just for the more senior corporate roles.

  Scenario:

  The employer is willing to supply and pay for the iPads, if there is a good way to hold the employee responsible when the units are inevitably lost or damaged. Assuming that the employees are not brought below minimum wage, would using a responsibility acknowledgment, and automatic payroll deduction authorization form, be sufficient? More specifically, if the total deduction would dip the employee below minimum wage for a workweek, can it be spread out over multiple workweeks without violation of the minimum wage laws such as 29 CFR 531.35?

  Wisdom of the Crowd:

   

• Response #1:

  • An employer should not make any deductions from an exempt employees salary or otherwise risk losing the basis for the exemption (almost all exemptions require the company prove a salary basis which does not vary based on quality or quantity of hours worked). As mentioned, we would not be likely to provide these for non-exempt employees.^ix

• Question:

  Is another solution charging the employee up to a $100 each week over and above minimum wage, until enough is collected to pay for the costs of the equipment, at which point the employee will own the equipment?

  Alternatively, the employer is willing to encourage (but not require) the sales staff to purchase and use their own iPads at work. However, would this option violate 29 CFR 531.35, which states, "if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act?"^x

  Wisdom of the Crowd:

   

• Response #1:

  • See the Electronic Information Systems Policy (Sample Policy from Goodwill Industries of Southeastern Wisconsin, Inc.)

  VIII. iPad & smart phone use after business hours - nonexempt employees

   

• Question:

  What labor issues could come up as a result of nonexempt employees using these devices after hours? How does your company monitor, or attempt to control, employees who access company information after hours?

  Insights

  • We would not allow a non-exempt employee to have access through a device like this to avoid these exact issues. If there is an exception, we'd treat it just like a cellphone or blackberry and require the reporting of such hours worked.^xi

  IX. Additional ACC resources to consider

  • Michelle J. LeBeau, Personally Owned Mobile Devise Policy (ACC Form & Policy, July 2013)
  • Gregory R. Watchman & Daniel P. Westman, The Millennial Generation's Wireless Work Styles: Cutting Edge or Slippery Slope? (ACC Docket, vol. 27, no. 3, Apr. 2009)
  • Daniel B. Garrie, Top Ten Tips for Managing the "Bring Your Own Device to the Workplace" Environment (ACC Top Ten, May 2013)

  ⁱ Response from: Charles Duke, General Counsel, Zippo Manufacturing Co.; PA, United States (Employment & Labor Law, Dec. 22, 2010). ⁱⁱ Response from: Daniel Yanagihara Jr, Vice President, General Counsel and Corporate Secretary, Pacific Coast Companies, Inc.; CA, United States (Employment & Labor Law, Mar. 03, 2011). ⁱⁱⁱ Response from: Anonymous (Oct. 2010). ^iv Response from: Mark Donald; CO, United States (Employment & Labor Law, Mar. 24, 2011). ^v Response from: Harold Federow, Contract, Vendor & IP Manager, Port of Seattle; WA, United States (Employment & Labor Law, Mar. 25, 2011). ^vi Response from: Ms. Dani Sanchez-Gleason, L&E Attorney, Texas Children's Hospital; TX, United States (e-mail on file with ACC, May 27, 2011). ^vii Response from: Ms. Dani Sanchez-Gleason, L&E Attorney, Texas Children's Hospital; TX, United States (e-mail on file with ACC, May 27, 2011). ^viii Response from: Joan B. Farrell, Vice President, General Counsel, Goodwill Industries of Southeastern Wisconsin, Inc.; WI, United States (Employment & Labor Law, Feb. 11, 2011). ^ix Response from: Ms. Dani Sanchez-Gleason, L&E Attorney, Texas Children's Hospital; TX, United States (e-mail on file with ACC, May 27, 2011). ^x Question and scenario from: Alan Jockers, General Counsel, Craig Zinn Automotive Group. ^xi Response from: Mrs. Dani Sanchez-Gleason, L&E Attorney, Texas Children's Hospital; TX, United States (e-mail on file with ACC, May 27, 2011).