Accessibility Tools

Skip to main content

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

Written on .

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. 

    View the newsletter online

    Download the newsletter as a PDF

    Get Email Updates

    Receive newsletters and alerts directly in your email inbox. Sign up below.
    promo graphic, Navigating the New Legal Minefield of Automated HR
    Artificial Intelligence is changing how businesses hire, manage, and evaluate employees—but it is also creating a new frontier for employme…
    stopwatch
    In FLSA Opinion Letter 2026-1, the Department of Labor (DOL) addressed whether an employer may reclassify an exempt worker from salaried ex…
    gavel, courtroom
    In a recent ruling by the Eleventh Circuit Court of Appeals in Atlanta, the court stated that hostile remarks about other minorities could…
    paper books
    On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its Enforcement Guidance on Harassment in the…
    round table
    Reports indicate that the new Chief Executive Officer of Walmart, John Furner, in his first company-wide memo since taking over, said he ha…
    handshake
    When employers attempt to settle disputes involving employment, the circumstances vary greatly as to the formality.  Most employers will no…