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NH Legal Perspective: Widespread use of smartphones, tablets creates legal issues

May 17. 2014 2:32AM

THE PROLIFERATION of smartphones and other handheld and portable computing devices has spawned a host of difficult issues facing employers and employees.

For example, an employee may own a smartphone that she uses for email and text messaging, accessing social media sites and playing games in her personal time. She might also own a tablet that she uses to stream television and to Skype with her parents overseas. When not in the office, she uses the smartphone to access her work email, which allows her to communicate in almost real time with suppliers on another continent and to leave work in time to attend her son's soccer game, while remaining timely with her company communications.

She uses her tablet to edit company presentations while relaxing at home in the evenings. Using one device for both personal and business purposes, often called "dual use" devices, can be beneficial to both the employer and employee, resulting in, among other things, increased productivity and flexibility.

However, significant risks and potential legal pitfalls are prevalent in this arrangement. For example, if the employee is a nonexempt worker, she may need to be paid (overtime, if applicable) for the time she spends working on her phone, and those hours (or, in many cases, minutes) must be recorded accurately.

Further, if she loses her phone (or even if it is accessed by a family member or friend without her knowledge), depending on the security measures implemented, the employer can be faced with a loss of security over its confidential information and, in some instances, protected information of customers and others (such as health, financial or personal information) being available to those not authorized to view it.

A similar issue arises if the employee resigns or is fired from the company and has the ability to remove confidential, protected and/or trade secret information from the smartphone to a personal device at home prior to the company terminating access. An employer must also consider how to maintain its right to access its data, even if stored on an employee's own device, while simultaneously respecting the employee's privacy rights in her own personal data also stored there.

A company's information technology professionals are also likely to raise important technical considerations. For one, because many, if not most, smartphones and tablets are not protected by antivirus software, an employer must consider the risks of malware and viruses. If the employee's device uses applications that store information on the cloud, an employer must consider if such storage is secure enough to protect its data.

The issues outlined above are hardly the only considerations for a company evaluating whether to allow employees to use personal smartphones and similar devices for company business. For example, consider issues such as how an employer responds to a litigation hold (a stipulation requiring a company to preserve all data that may relate to a legal action) when its employees use such devices or whether an employer could be liable for a distracted driving accident in which an employee is using a dual use device.

However, given the widespread and prolific use of such devices across industries, it is almost inevitable - and understandable - that employers will decide to permit such dual use. In fact, employers need to recognize that, even if they do not explicitly permit dual use devices, their employees may be using them anyway. Accordingly, it is important for an employer to consider all these issues and develop an explicit policy to outline its expectations.

Many companies are implementing so-called Bring Your Own Device, or "BYOD," policies. Such policies should address, or at least consider, all of the issues above, as well as whether there should be a single policy for all employees or if different considerations for different groups of employees will result in the implementation of multiple policies.

BYOD and Dual Use policies should be carefully tailored to the issues raised by a company's particular situation. Employers should consult with attorneys who are familiar with these issues for assistance in developing such policies.

NH Legal Perspective is a biweekly column sponsored by Sheehan Phinney Bass + Green PA. This column does not provide legal advice. We recommend that you consult an attorney for specific guidance on legal questions.

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