The BYOD Policy: From The Yugo To The Cadillac

by Gray Reed & McGraw

Your employees want to be able to use their own iPhones or Android devices at work.  Angry Birds on the Blackberry is just not the same.  This trend is being referred to as Bring Your Own Device or BYOD.

While it will make your employees happy, it creates some issues that involve three key stakeholders: legal, IT and HR.  They need to get together to make sure the company does not willy-nilly take on unneeded risk just so the recent college grad can access Instagram photos on his phone while working.

So, where do I start?

While there are IT and HR issues to consider, the primary legal risk centers on the company’s need to access the employee’s personal phone and possibility to wipe it clean if the phone is lost or the employee is terminated. 

If you want to address the issues cheaply (the Yugo), then adjust your existing Computer Use or Technology Resources (whatever you have already called it) policy.  Make sure the restrictions and rules also apply to the employee-owned devices (don’t forget the tablets) that access the company’s computer networks and resources.   You also probably need to add a line that although the company will try not to erase or access personal items on personal devices, the company reserves the right to access the phone, its data and possibly wipe it clean if it needs to protect company assets or conduct necessary investigations.  Employees should also be warned that they run the risk of losing personal data on their devices if they use them for work.

If you don’t already have some type of Computer Use policy, then you can create a brief agreement with employees before you allow them to use their personal devices to access the company’s networks to cover these basics.

This is a minimal approach to covering BYOD that covers the privacy and right to search/erase issues. In one of the few applicable cases involving the company inspection of a personal laptop, the court in Sitton v. Print Direction, Inc., 718 S.E.2d 532 (Ga. Ct. App. 2011) noted the employee gave the company permission to look at the contents on the laptop when it expressed the necessity for the company “to be able to respond to proper requests resulting from legal proceedings that call for electronically-stored evidence” and provided that for this reason, its employees should not regard “electronic mail left on or transmitted over these systems” as “private or confidential.” The company’s policy also stated the company “will . . . inspect the contents of computers, voice mail or electronic mail in the course of an investigation triggered by indications of unacceptable behavior.” The policy was expressly included personal devices used at work and not just company-issued computers.

We want more . . .

If you like, or want more rules, the pundits suggest there you should have a whole policy separate and apart from your computer use policy to cover things not necessarily addressed above such as:

- Required security measures the company will take (such as requiring passcodes to unlock the iPhone or company-provided apps with more complex, rotating passwords or automatic locks after a set number of failed attempts)

- The ability to clean a device remotely if stolen or lost including employee notification protocols with warning that personal items may be lost in the process

- Notice that using your own device is a privilege and not a right

- Only employees can access company resources with devices

- Reserving the right to disconnect from the company resources without notice

- Departing employee procedures

- Coordination with the data retention policies

- Identify which devices and operating systems the company will support

- Eligibility and Reimbursement procedures and restrictions

- Any required applications that the company will require to be installed

- Require IT approval before use

- Require IT approval before transfer or disposal of the device to clean

- Reserve the right to wipe clean in case of an emergency

- Disclaim any liability for increased charges

- Add that the company does not condone typing or reading while driving

- Disclaim any liability for data loss to the device as a result of the company data or applications

- What support is available for BYOD

- Restrictions against jailbreaking or otherwise modifying the operating system of the phone

The gold-plated plan would require the employee to sign off on this policy separate and apart from the rest of the employee manual. 

For more . . .

Here is a website with a sample policy.  It needs to be tailored to fit your specific needs and requirements.  If you are just getting started, this may be a helpful place to start.  SAP BYOD Policy Guidebook


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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