My Smartphone, My Life. But Who Owns It?

Often, technological change happens at a much greater rate than rules and regulation can keep up with.  There is no better example of this than the use of cell phones in business where, in 2017, it is unusual for an employee with any level of responsibility to be contacted only at their desk. But the use of a cell phone for work raises a number of questions which might be critically important.  Consider these issues:

Who pays the bill?

Sometimes, employees obligingly provide their cell phone number to clients for ease of communication.  Other times, the client learns the employee’s number via a caller-ID system.  Over time, they come to communicate by cell phone.  Who pays that phone account?  Arguably, that is an expense incurred in furthering the employer’s business, and there is a good argument that it should be met by the employer.  But does the employer want the employee doing that?  Who pays for the employee’s calls to their mum?  Or their costly downloads?  Who pays for roaming if the employee checks their work emails while overseas?

Who owns the number?

When the employee arrives at a new job their existing phone number gets added to their business cards.  The business booms and the employee’s cell phone number features in bill board ads, on the back of buses and in a radio jingle.  Then the employee leaves to work for a competitor.  Who will be allowed to pick up the phone when all those new customers call? 

How much is the employer’s business?

Let’s say that there is agreement between the employee and the employer that the employee uses their own device or devices for work.  The employer pays the bill or at least a reasonable portion of it.  What happens if it later turns out that there is pornographic material on that device?  Or evidence of the employee wasting the employer’s time? Can the employer use that to discipline the employee?  What happens to emails and contact information when the employee leaves?

Alternatively, let’s say it is clear that the employer owns the device and everything on it.  Can the employee use the device for any personal purpose?  What happens to personal messages, photographs and downloads stored on the device?  Can the employer access them, use them against the employee or delete them?

Who is responsible for the device?

The device gets dropped in the toilet.  Who is responsible for replacing it?  Does it matter whether the incident occurred at work or at home?  What happens when the device gets old and slow?  What if it gets infected with some virus (and that virus affects contacts as well)? 

Is the employee properly paid for their work?

The good thing about the ‘traditional’ work week is that it was easy to calculate how many hours an employee worked and whether they were being paid properly.  If an employee is using their smartphone at home, does it meant they are working? How can an employer control and monitor the work being done, and the hours of work (to ensure that the employee has sufficient breaks and is paid at least the minimum wage)?

Do any of these stupid questions even have an answer?!

There is no clear answer to any of these questions.  Maybe over time, and as these issues are tested in the Courts, some principles will emerge.  But each case will likely turn on the particular circumstances of the arrangement between the parties.

There may be policies which assist in determining the issue, but policies may conflict (for example a privacy policy might not match the scope of a work tools policy), or may not fully address the issue (eg the policy might address out of hours calls but not international roaming).  There may be practices in your workplace relevant to how these questions might be answered. 

The simplest approach would be for an employer to issue devices and phone numbers that are for work, and only work, and are entirely paid for by the employer.  But it is unlikely that this is going to be workable in all situations. The very best advice is that if you or your employees are using a mobile device for work in any way, you should discuss this in advance and agree on the answers to these questions.  A BYOD agreement, communication tools policy, or work device rule document is a good way to do this. 

If you need help navigating the use of work devices, or need a smartphone policy, please do not hesitate to call me.