BYOD stands for “Bring Your Own Device” and is a policy by which employers allow employees to bring their own computing devices such as smartphones, laptops and tablets to work for use and connectivity . Put plainly, companies are allowing their employees to use their personal laptops and phones to access company information and data to complete their employment tasks. This policy has been reported to increase efficiency to controlling costs on providing a mobile workforce . However, with major advantages to BYOD policies such as controlled costs and employee ease of access to data, companies may be overlooking the potential pitfalls and exposure associated with BYOD policies. Similarly, employees may be overlooking the downside to being able to work from their phones or laptops on vacation.
For instance, despite stabilizing controlling costs, BYOD policies may prove to be costlier for employers and less rewarding for employees in the long run. Employers in California have a broad obligation under California Labor Code Section 2802 (a) to cover their employees’ business expenses. Such expenses could include at least part of the costs of a wireless voice and data plan if the employee is permitted or required to use a personal device at work . Moreover, employees may encounter problems with proving the proper use of their computing devices or invoicing the amount and rate of personal data allotted to completing work-related tasks. In today’s rapidly engulfing digital world, allowing the use of one’s personal cell phone, hotspot, computer or tablet at or for work may seem like the norm, however with the employment and legal ramifications for this seemingly normal workplace behavior are worth paying attention to to prevent any unwanted wage and hour, overtime, or reimbursement issues.
In the 2014 case Cochran v. Schwan’s Home Service, Inc., an employee brought a class-action suit against their employer on behalf of customer service managers alleging labor code violation and unfair business practices for a lack of reimbursement for expenses pertaining to the work-related use of their personal cell phones. There, the customer service employees were requiredto use their personal cellphones for work-related tasks, an all too familiar occurrence in today’s workplace. The Court of Appeal in Cochran reasoned that the purpose of Labor Code Section 2802 was to require employers to indemnify an employee for all necessary expenditures or losses incurred in the discharge of their duties to prevent employers from passing their operating expenses on to their employee.
At this point, some employers may be thinking “are reimbursements required even if the use of a personal device does not result in an extra expense that would not have happened if not for work?” Short answer, YES! The court in Cochran addressed this point by further opining that an employer always has to reimburse an employee for the reasonable expense of the mandatory use of their device regardless of whether an extra expense was incurred. This case concerns a scenario where BYOD is a requirement of employment, but what if the policy merely permits employees to use this option?
The Red Flags
BYOD policies make it nearly impossible to manage the manner of access and use of the information employees are accessing on their personal devices. Employers and employees alike should be mindful of the following potentials for trouble with BYOD policies:
- Privacy Issues
Difficulty exists between striking a balance between the employers’ duty to safeguard sensitive and proprietary information with protecting employee privacy. The best way to prevent issues here is to outline specifically what can and cannot be accessed on the personal device, what happens in the event the device is lost or stolen and if monitoring or an investigation becomes necessary .
- Wage and Hour Issues
Employers are required to pay employees for time spent working on and off the clock including overtime pay for anything over 40 hours worked in a week. However, calculating hours can be difficult when employees are able to log in from virtually anywhere and miscalculations may lead to underpaying, lack of oversight of reimbursement process, or legal and taxation consequences. To avoid this, employers may want to limit BYOD policies to only exempt employees to utilize the stability that comes from well established salary requirements. Likewise, employees should be sure to properly track their tasks and time time spent on their devices for BYOD purposes to avoid possible rejection of reimbursement requests or inadvertent wage loss .
- Lost or Stolen Device Issues
Unfortunately, not all employees leave an agency on good terms and not everyone is as careful with their devices as we would hope. BYOD can be a goldmine of exposure to a company in the eyes of a disgruntled employee with sensitive information on their personal devices. Such information may either be published or disseminated to the public against the employer’s wishes. Also when employees’ devices containing access to or copies of employer data is lost or stolen, the unsecured data is left unprotected at risk of malicious software corrupting the device and all information contained on it. Lastly, some employers may have the ability to wipe an employee’s device clean to factory settings in the event that a BYOD device is lost or stolen. A way to avoid these red flags may be by clearly outlining each party’s rights and responsibilities regarding BYOD practices and what would happen in case of theft or misplacing .
Like any other business decision regarding operations and oversight, your choice on how to proceed depends on a number of variables that must be carefully considered and weighed before making a final choice. There are a number of pros and cons to being a BYOD company. Ultimately, if your guidelines and employee designations (exempt, nonexempt, independent contractor, intern) are clear and all potentials for exposure have been addressed this may be a great option to help bring your business and workforce into the digital age.