Workplace Bring-Your-Own-Device Policies Provide Employees With Privacy Protection Under the Charter

Bring your own device (BYOD), also called bring your own technology, bring your own phone, and bring your own personal computer, refers to allowing an employee to use their own personal devices, rather than requiring them to use an official device. So, what happens to this device after termination? With BYOD, however, there is an increased blurring of the lines between professional and personal lives, with employee concerns that their privacy is at risk, not to mention issues associated with the employee’s personal information. Essentially, the question is can a company keep your phone number when you quit if you ported it to the company plan from a personal line originally?

3. Who owns the physical device? Who bought the device in the first place?  Who paid for the data plan?  Do the contractual terms or policies in place govern who owns the physical device?  The rapid depreciation of phones may make this a less attractive battleground for employers.  To give or return the physical asset after the digital issues have been resolved can be a useful, strategic gesture.
4. Be sure that the IT department crystallizes the employee’s server profile just before a termination meeting to minimize the risk of data loss.
5. Who owns the phone number?   Employees who bring in their own phones may have also brought in their existing numbers.  It may not be necessary to return the phone number if the employee didn’t have a sales role or interact with vendors or clients.  If that BYOD number has now become the primary client contact – and sadly, there is no contract or policy reserving the employer’s right to use the number – then the settlement negotiations will need to address the issue of who retains the number.

In Rotstein v. Cable & Wireless, Inc, 2002, an unpublished opinion, the employer agreed to pay for Mr. Rotstein’s home phone number.  The company paid the Rotstein family’s phone bill since Mr. Rotstein primarily worked from home.  The Rotsteins had this number for four years before the company started paying the bill.  The company transferred Mr. Rotstein’s number to the company’s phone carrier and his phone bills were sent straight to the company for payment.  After one year Mr. Rotstein was terminated, the company instructed the telephone carrier to forward all calls made to the Rotstein’s home phone number to the company.

The appellate court, in dicta, explained that courts should perform an analysis to determine who the phone provider’s customer is.  But the court also determined a telephone number cannot be subject to any conversion actions, after all telephone numbers are not tangible property.  It stated, “The right to telephone service is not … personal property which is capable of being converted, the right is not a vested right but in reality a privilege.” Teleco, Inc. v. Southwestern Bell Telephone Co., (1974).

4. What are the ownership rights to the digital assets on the phone? The majority of your information is probably backed up on the company’s main server; however, are there any files stored locally on the phone that need to be wiped or that indicate the phone should be returned to the company?  In the event that the client information is organized into a customized software program or internal database, no employee can walk out of the building with a phone full of client information.  Employers will, however, have a difficult time asserting proprietary rights over publicly available information.  Businesses may have direct access to other company-related content stored on a phone, such as agendas, documents, unique software, etc., but controlling contacts remains a challenge, depending on how they are organized and collected.
5. Company Policies When an employer sorts through the terminated employee’s requests, it will be apparent that a clause in the employment agreement requiring BYOD and computer use would have been beneficial. In many cases, it is not clear who owns the digital assets, particularly when someone brings their own device.
6. Does the employer have the option of wiping the device entirely for security?   Privacy is a right of employees. Employers can limit those risks by providing comprehensive and crystal-clear policies, but at the end of the day, employers will have a headache if personal photos are wiped, email accounts are sealed, and contacts are denied without notice.  It should become routine to disentangle an employee from the mothership, because no matter how much an employer may desire to keep a thick line between work and personal life, that is no longer how life is lived.

Here is an overview of the court’s position on who owns the device and phone number after termination-the employer or employee. The case laws below buttress these points. On October 19, 2012, the Supreme Court of Canada released its judgment in R v Cole, [2012] 3 SCR 34 [Cole], the Supreme Court indicated that even where an electronic device is issued and ultimately owned by an employer, an employee may have a reasonable expectation of privacy in that device so long as some incidental personal use is permitted. As such, random, indiscriminate, or expansive searches of such devices without justification would be unreasonable.

In R v Morelli, [2010] 1 SCR 253 the court held that individuals have a reasonable expectation of privacy in the informational content of their personal computers.  Cole extended this finding to work-issued computers. Although the expectation of privacy is diminished in a workplace computer, employees still have a privacy interest in the informational content of work-issued computers protected by s. 8 of the Charter.

In R v. Polius (2009), 196 CRR (2d) 288 (Ont. SCJ)., the court found that an individual has a reasonable expectation of privacy in the contents of his or her cell phone since “[t]he information in a cell phone … may relate to aspects of life that are deeply personal.” The information includes photographs, videos, text messages, E-mail messages, call logs, etc.

Summary

Somewhere in a mountain of paperwork that an employee likely signed during the on-boarding process is a clause that states he agrees to abide by all company policies. Even if the employer made the employee sign something stating that he would receive his personal phone number upon termination, it would likely be unenforceable.

Also, the cell phone contract between a cell phone provider and customer would typically contain language that says you cannot “assign or transfer the Agreement or any of your rights or duties under it”. A contract stating that an employee’s phone number will be withheld upon termination or resignation is invalid, since a contract cannot impose an impossible or illegal requirement.

Technically speaking, phone numbers belong to the phone company, so the service contract with your telephone company gives limited rights to use the number. If you signed the contract with your phone company, the rights to use the number are yours alone. Your employer was not a party to that contract; thus it gives them zero legal rights to the number.

The employment lawyers at Osuji & Smith are available to assist you with any questions related to your employment rights, including right to privacy in the context of employment.

Author: Lydia Iboko, Student-at-Law