Start-Up Launchpad Blog

You're Taking Away My What?! Personal Electronics in the Workplace - October 14, 2011

Jo Ellen Whitney

Jo Ellen Whitney, employment and health law

In the hectic push of the day-to-day life of an entrepreneurial startup, it is very difficult to keep work and personal life completely separate.  In fact, for many people, work and life are pretty much the same thing, which for practical purposes means that their personal electronics, smart phone, tablet, laptop and other items tend to be used for both personal lines of communication and management. The issues that crop up when we co-mingle work and personal data are complex and varied.

While employees have always co-mingled data in planners and calendars when you factor in the size of electronic data groups privacy, the issues of security of your own systems become critical.  If employees are going to utilize personal electronics to access your systems, you need to require that they maintain certain forms of anti-virus software and that they meet other specific security guidelines - password protection, certain forms of encryption or other processes.  You may also need to take internal measures to block entire groupings of data from external access to meet requirements for the Red Flag Rules, HIPAA/HITECH and other required regulations.  You will also want to think about requiring regular cross system backup as many employees work exclusively on their personal electronics. We need to make sure that employees are downloading work items to the system in case those electronics are lost (next generation iPhone left in a bar by a developer and subsequently purchased by an on-line blogger) or destroyed in the standard "my kid dumped the entire pitcher of orange juice on my tablet" accident.

Also of concern are issues regarding what happens when litigation crops up.  If employees are using personal electronics to send e-mails, text messages or manipulate and store data it is very likely that in the course of litigation they will need to turn those personal electronic devices over to your attorney as part of the litigation discovery process.  Most employees have stuff on their personal electronics they never want you to see (naked pictures or bad poetry) but they need to be aware up front that this is a possibility if they are going to mix business and personal uses. One strong recommendation is to enter into an agreement with employees for the utilization of personal electrics which sets out certain basic guidelines such as those for password encryption and also includes statements relating to use in litigation.

Once you do have a lawsuit and you are aware that employees use their personal devices for communication YOU are required to provide notice to those employees to preserve all data and information on those devices and to provide those devices where appropriate. Employees need to get written notice of what to preserve and how to preserve it in order to come into full compliance with state and federal rules regarding the preservation of electronic evidence.

While employees don't like signing forms relating to how you might take and utilize their personal electronics it's better to get these issues out of the way in the beginning rather than having a disagreement or having a phone "disappear" when you need it most for your defense in litigation.