Business Or Pleasure: The Challenges Of Bring Your Own Device Policies In The Workplace

Dylan W. Wiseman

Littler Mendelson, P.C.

dwiseman@littler.com

Lingo:

Dual Use Mobile Devices and BYOD

• BYOD = Bring Your Own Device

• Dual Use Mobile Device: Mobile device used to

create, store and transmit both personal and

work-related data

• Some Other Terms:

– BYOC: Bring Your Own Computer. Programs that add

laptops to the covered devices

– BYOA: Bring Your Own App. Per Gartner Group, 145

new mobile apps were downloaded per second in Q4

2012

2

What Are Employees Doing?

Consumerization of IT

• 62% of full-time workers

own smartphone

• 33% of full-time workers

own tablet

• Time spent on a mobile device each day

by U.S. adult has quadrupled from 2009

(22 minutes) to 2012 (88 minutes)

(USA Today 3/7/13)

3

What Are Employers Doing?

• 55% of IT managers have made exceptions for “specialized

members,” i.e., top executives to use their choice of devices and

software (2013 iPass MobileIron study)

• 55% of IT directors will actively accommodate and encourage the use

of personal devices (Citrix Study 2012)

• 81% of respondents accommodate personal devices in the workplace

(2013 iPass MobileIron study)

• 54% of respondents had a formalized BYOD policy (2013 iPass

MobileIron study)

4

• IBM

– 80,000 employees

– IBM CIO: “If we didn’t support them, we figured [employees] would figure out how to support [the devices] themselves.

• Intel

– Started program in 2008

– Now encompasses 24,000 devices, about 90% of these are smartphones

– Uses multiple security levels for access to different categories of documents

• Sybase

– 20 different phone options

– Employees buy and own the phones, but Sybase pays for the monthly service contract

• Citrix

– $2,100 stipend to purchase a laptop of their choice and a 3-year warranty.

– Company owned cost was $2,600.

– Adoption rate of about 20%.

Tech Companies Taking The Lead

5

What Are Employees Doing?

How do you use your smartphone?

Source: The iPass Global Mobile Workforce Report, http://mobile-workforce-project.ipass.com/cpwp/wp-

content/files_mf/ipass_mobileworkforcereport_q3_2011.pdf

6

What Are Employees Doing?

Do you use your tablet primarily as a

personal or work device?

7

Corporate Rationales

• Reducing expenses for employers

• Improving employee productivity

– Intel estimates that its BYOD employees save an average of 57

minutes per day by being able to access work materials from

personal devices based on three years of employee estimates

• Improving employee engagement

• Aiding in the recruitment of new employees

• Solving the “two pocket problem”

8

• All tallied, BYOD doesn’t look pretty from a cost perspective. A typical mobile

BYOD environment costs 33 percent more than a well-managed wireless

deployment where the company owns the devices ***.”

– Loss of bulk purchasing power

– Higher help desk/support costs

– Security issues

• The trend toward employee-owned devices isn’t saving IBM any money. (MIT

Technology Review, Monday, May 21, 2012)

Does It Really Reduce Costs?

9

Creates Significant Risks Most Companies

Are Ignoring

• Data-Related Risks

– Security of company data

– Privacy of employee data

– Records management

– Contractual obligations

– eDiscovery

– Trade Secret Protection

– Contingent Workers

• HR-Related Risks

– Performance management

– Tax

– EEO

– Wage & Hour

– Workplace Safety

– Labor

– International

• COPE

– Corporate

– Owned

– Personally

– Enabled

There is an alternative

HR and Employment Law

Issues

HR and Employment Law Issues

• Performance management

• Discrimination, hostile work

environment, accommodation

issues

• Workplace Safety

• Wage & Hour

• Expense Reimbursement

• Labor

• International

Data Security & Privacy

Issues

• Access to private information

– Computer forensics

– eDiscovery collection during litigation

• Issuing a remote wipe command

– Employees have a reasonable expectation of privacy in their

personal device

– All 50 states have computer trespass laws

– Computer Fraud & Abuse Act

Employee Privacy Rights

• Employee ownership of the account with the service provider

will limit company access to its data

• No contract with company

• Obligation to “vet” security controls of vendors

• Data may be more available to law enforcement or others

Gateway to the cloud

• Stored Communications Act

• Computer Trespass Laws

• Password Protection Laws

Accessing Employee’s Data

• “60 percent of American workers who left their employers

[in 2008] took some data with them.” (Economist)

• Misappropriation may be harder to prove

• Use or disclosure will be the focus

• Access to the devices will be a challenge

Trade Secret Protection

• Locating the data

• Access to the device

• Collection challenges

eDiscovery Challenges

Recommendations

• Careful Planning

• Policies

• Technical controls

• Operating procedures and capabilities

• Educate and train

Coordinated Approach

Decide whether all employees should be

permitted to participate in a BYOD program

or whether certain groups should be

excluded

Recommendation

Require employees to consent to all

company activities involving the personal

device

Recommendation

Modify or create Employee Agreements

Recommendation

Restrict employees from using cloud-based

apps, cloud-based backup, or synchronizing

work-related data

Recommendation

Ensure that use complies with Wage and

Hour obligations by prohibiting off-the-clock

work and ensuring pay for all hours worked

Recommendation

Training

Recommendation

Revise exit interview processes

Recommendation

Bottom Line: BYOD creates risks and challenges

for employers

• Data-Related Risks

– Security of company data

– Privacy of employee data

– Records management

– Contractual obligations

– eDiscovery

– Trade Secret Protection

– Contingent Workers

• HR-Related Risks

– Performance management

– EEO

– Wage & Hour

– Workplace Safety

– Labor

– International

Questions

Go to: www.workplaceprivacycounsel.com Search: “BYOD”

Littler BYOD White Paper

Thank You