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July 31, 2013

Is Personal Email on a Company Phone Really Personal?

Filed under: General HR Buzz,Legal Issues,Privacy10:11 am

A recent case caught my eye this week regarding the personal use of a company-issued smartphone.  Smartphones are everywhere, in the possession of nearly everyone, and can do just about anything!  Anything, except – - erase your personal email account all by itself when you forget!

In the case of Lazette v. Kulmatycki (N.D. Ohio 6/5/13), that is just what happened.  Lazette was issued a Blackberry by her employer.  She was told that she could use the company-issued phone for personal email.  She had an account with Gmail, and believed she had deleted that account from the phone before giving it to Kulmatycki, her supervisor, upon exiting the company.  She had the understanding that her phone would be “recycled” to another employee.  After leaving the company, she learned that instead of deleting her email account, her former supervisor had been accessing her Gmail account, reading 48,000 emails over a period of eighteen months!  Among the contents of the accessed emails were communications about Lazette’s family, career, financials, health, and other personal matters.

Lazette has filed suit alleging the company and her former supervisor violated the Stored Communications Act, which prohibits the unauthorized access of electronic communications.  Lazette presented sufficient evidence that will allow her suit to proceed to discovery.

How can an employer manage this type of risk?  Here are a few suggestions:

  • Have a communications policy.  The policy should explain that employees should have no expectations of privacy related to electronic communications sent or received on a company-issued/owned mobile device, including personal accounts.  Include a statement prohibiting employees from accessing the personal email or internet accounts of fellow coworkers.
  • Wipe the device clean.  It is a common practice to reuse electronic equipment within a company.   Instruct IT personnel to remove all personal data of the former employee upon the return of any electronic equipment.
  • Isolate the device first.  Prior to wiping the device completely, make sure information stored on the device is not needed for legal proceedings in an ongoing or potential lawsuit.
  • Never, ever, ever read your employees’ personal email no matter how tempting it may be!

Need help drafting a policy or employee handbook?  See www.hrnonline.com

Source:  Hyman, Jon.  “Who Owns Personal Email on an Employer-Issued Smartphone?”  The Practical Employer.  Available online at www.workforce.com/blogs/3/post/9222

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