Issues of Employer Access to Employees’ Personal Devices Such as Cell Phones, Etc

Many employers have not adequately considered that business-related communications exist on personal employees’ cell phones and other devices, and to what extent they have access to such information.  It is not uncommon for employees including managers and supervisors to use their personal devices for work purposes.  It creates intellectual property issues and a potential for important evidence to exist on devices outside the employer’s direct control.  Many laws also affect this issue, including federal laws such as the Electronic Communications Privacy Act, the Wiretap Act, and the Stored Communications Act, which restrict the interception of electronic communications with exceptions for business use and employee consent.  Some states have also passed laws with strict standards and also state privacy concepts may come into play.  In addition, during litigation, it is common for plaintiffs to seek information from employee cell phones when relevant to the litigation, and employers have a legal obligation to preserve relevant information when they become aware of such actual or expected litigation, a concept known as “litigation holds.”  The failure to preserve such information may lead to adverse consequences to the employer in litigation.

Employers have many reasons to get data from an employee’s cell phone, including for the purpose of internal investigations into misconduct or harassment.  For these reasons, employers would be wise to have written workplace policies that govern the use of personal devices and the employer’s right to access data.  Such policies should define acceptable use, the conditions under which access may occur, and any data security requirements.  It would also be helpful to require employee consent to such actions as a condition of employment. 

This article is part of our December 2025 Newsletter. 

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