Attorneys: Include Personal Devices in Investigation Policies

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By Caryn Freeman

Aug. 12 — It can present problems for employers when information pertinent to a workplace investigation is stored on employees' personal electronic devices.

Employees have a Fourth Amendment right against unreasonable searches and seizures, but that right can be “limited and even defeated by a workplace policy that limits their expectation of privacy,” attorneys interviewed by Bloomberg BNA said.

Include Personal Devices in Policy

Thomas G. Servodidio, partner at management-side law firm Duane Morris LLP's Philadelphia office, told Bloomberg BNA Aug. 11 that he advises employers to develop a policy that includes access to personal mobile devices as well as company-issued mobile devices.

“In that policy we suggest that employers make it clear that if an employee uses a personal device for conducting business, whether it is through use or access of a company e-mail system or other company network system, connecting with clients or communicating with coworkers, that there's an understanding through that policy that the employer has the right to protect its business through access to that mobile device during a workplace investigation,” he said.

Servodidio advised employers to have employees sign off on the policy. “If they have consented, whether they have fully understood it or not, it is laid out in the policy that when there is a legitimate investigation that implicates this individual either as the witness, the accused or the victim that they have consented that device can be inspected for that purpose,” he explained.

Enforce Policy Equitably and Consistently

Valencia Rainey, plaintiff's attorney and partner at Kalijarvi, Chuzi, Newman & Fitch, P.C. in Washington, D.C., agreed and told Bloomberg BNA Aug. 5 that a detailed and specific policy explaining where and how these devices can be searched by the employer should be clearly communicated.

“There should be objective proof that this policy has been communicated to the employee and the employer has to ensure that it enforces the policy,” Rainey said.

She said although employers often have policies on what employees should expect during a workplace investigation policies are not enforced equitably.

“A lot of companies have these policies but they never enforce them. The employer has to make sure that it is enforced evenly because all too often we get a situation where it's an African-American or a female employee where the policy is finally enforced. If it is not enforced consistently or fairly a claim of disparate treatment or violating privacy or constitutional rights [can be raised],” she said.

Conducting Investigations

Henry Morris, Jr., management attorney and partner with Arent Fox LLP in Washington, told Bloomberg BNA Aug. 7 that if an employee is suspected of either witnessing or being involved in some kind of wrongdoing or offense the employer should approach the employee and ask to view the device “in a way that discloses the reasonableness of the investigation.”

“I think a best practice is for employers to manage the workplace reasonably and that includes giving notice to employees that they are expected to reasonably cooperate in an investigation, that an investigation may include inspection of personal property, including [electronics], and employees are expected to do nothing to impair an investigation,” Morris said.

Servodidio added that failure to comply with that policy can be a form of insubordination and that in a “typical non-union situation and in an at-will employment relationship that could result in discipline, including termination of employment when they have consented to these terms under the policy,” he said.

Hire a “Neutral Forensics Expert.”

Servodidio, noting the importance of protecting employee privacy, advised employers to use an outside forensics expert to image the device so that employer access to personal information is limited and to use “narrow and appropriately legitimate search terms,” he said.

This will give the employee some protection, while preventing any argument that things were modified, planted or deleted, he said.

Servodidio advised that the request for the device be made by an investigative team that includes someone from the operational side of the business and human resources.

“You really need some operational insight as to whether what the person did really did have a negative impact on the business but you also need HR's input because they're the ones who understand what the policies are that these employees have signed on to. Typically the human resources person is making a request for that device and I have a forensics expert go to the employee to image the device and within an hour or two the employee has their device returned,” he said.

To contact the reporter on this story: Caryn Freeman in Washington at cfreeman@bna.com

To contact the editor responsible for this story: Anthony Harris at tharris@bna.com