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Can your employer control what you do on your phone?

29 July 2020


How many times do you interact with your smartphone every day?

If you are typical it is likely your estimate will be far less than the reality. Check it out for a day or even an hour. Today's smartphones seem like an extension of our personality.

Times have certainly changed from when I was an adolescent and we only had landlines. In fact, where I lived in Paekakariki we even had one line - a "party line"- shared between several houses.

Smartphones can be used in virtually every aspect of your life - for your entertainment, social life, finances, and your job. This means that your device becomes a gold mine of all sorts of personal information.

So, what happens when an app innocently downloaded for one purpose attempts to use your data for another? Many people fail to read the very longwinded terms and conditions and privacy policies for apps they download.

Even if they do, they will know that often information is used for a range of reasons like advertising purposes, quality control, or is essential to the function of the app.

Most readers will agree that when it comes to the safety of their personal information, they are the best person to be the judge of what is safe and what isn't.

But what if it's not just your information? Many readers will have access to work emails - or text co-workers about work related issues, or even use their devices to work from home.

Can employers trust their employees and their devices to protect sensitive company information? Or can they step in if they think certain apps pose a threat?

Readers may have seen a lot of controversy surrounding popular video app, TikTok.

TikTok is an app where users watch short videos and uses an algorithm to show other videos that might be of interest to that particular user. The app has been downloaded over two billion times worldwide.

However, what appears as an innocent entertainment source could be much more sinister. The app is owned by ByteDance, a company based in Beijing, and the company has been accused of allegedly leaking data back to the Chinese Government, something the company has denied. United Sates Secretary of State Mike Pompeo has alleged that TikTok users are at risk of their data ending up "in the hands of the Chinese Communist Party".

In the US recently, Amazon sent out an email banning all workers from downloading TikTok on any devices that access company email. Amazon then quickly changed tack and said the email was sent in error and there was no change in policy.

Following this, US bank Wells Fargo asked its employees to delete the app off company devices citing "TikTok's privacy and security controls and practices".

The concerns have gone so far that very recently the US banned federal staff from downloading TikTok on all government-issued devices. The country is even considering banning the app all together, like India has done. This appears to be tied to increasing tensions between these countries and China.

But politics aside - can an employer, whether or not it is the government, tell employees what they can or can't do on their devices?

Readers probably agree that it makes sense that employers can control the contents of work devices it provides. The devices would generally be the property of the employer, and are typically intended for work use only.

But can an employer tell you what you can or can't do on your own personal device just because you can use it to check work emails? The answer will depend on the employment agreement and the employer's policies.

When you are in the workplace, the employer can control device usage if they have policy that they have made clear to employees.

The Employment Relations Authority has even held that breaching a no cellphone use policy can justify a dismissal. In the case in question, the employee started work as a labourer working on a roof.

Due to safety concerns, he was told that no personal cellphones were allowed on the job. Despite this, the authority found that he had to be reminded of the no cellphone policy several times. When he was caught for a final time, the employer dismissed him.

The authority found this to be fair and reasonable in the circumstances as it made the policy clear to the employee, and they failed to follow it.

Even outside the workplace, the employer may still be able to control personal device usage as a means to protect its confidential information and the personal information of its employees.

Not only would an employer not want its commercial information disclosed to third parties, but it also has an obligation to protect any personal information in its possession. If any personal information is disclosed by the actions of an employee, the employer may still be held liable for any breach of privacy.

Readers will have noticed that when you go to certain sensitive government agencies your cellphone must be left at reception and locked up until you exit the agency. This has become an essential security measure as hacking and other technological manipulation becomes increasingly more sophisticated.

Technology has come a long way from the party lines of my youth. Smartphones are a great asset to communication both in employment and in ones personal life. But they also conceal real threats which are now being mitigated by employers and governments alike. We live in a rapidly changing world.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.


Employment insecurity?

In these difficult economic times, the team at Cullen knows that you may be feeling stressed and vulnerable. We would like to offer employees an affordable fixed rate for an initial consultation to discuss your situation.
To access this special rate of $150+GST please email enquiries@cullenlaw.co.nz

Cullen - The Employment Law Firm and Women's Refuge are partnering to bring your business an understanding of the effects of domestic violence and the new laws assisting victims of domestic violence at work. Contact us to discuss your needs.

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