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Negotiating BYOD cell phones at termination

Image: Idea go | FreeDigitalPhotos.net

Image: Idea go | FreeDigitalPhotos.net

You bring the employee into the boardroom, have an awkward 5 minute discussion about restructuring and the elimination of her role, thank her for her years of service, hand her the termination package with the various settlement package details, request that she returns all company property and offer to help her pack her personal items.

Then, she asks about her cell phone.  Can she keep the phone?  Can she keep the phone number?  She doesn’t have a home phone anymore so this is the only line she has.  How does she text her kids when they get home from school today?  She doesn’t want any client lists, but what about her personal contacts and the family birthdays she has included in Outlook?  What about her professional network (that may or may not include company clients)?  What about the pictures of her son’s grade 8 graduation last spring?

Welcome to the landmine of BYOD on termination of employment.  While many Canadian workplaces no longer wonder whether to permit an employee to bring in their own device and plug into the company’s server to access emails, there remains some unsettled questions about what to do upon termination.

Here are some key issues to consider upfront to avoid headaches upon termination:

1) Tee up your IT department and ensure they have crystalized the employee’s server profile just before the termination meeting, to minimize the risk of data loss after the meeting.

2) Who owns the physical device?   Who bought the device in the first place?  Who paid for the data plan?  Is there a contractual term or policy in place to govern ownership of the physical device?  Given how quickly phones depreciate, this may not be the battle ground where many employers will want to spend their time.  It can be a useful, strategic gesture to give/return the physical asset, after the digital issues are sorted out.

3) Who owns the phone number?  If your employee brings in their own phone, they may have also brought in a pre-existing telephone number.  If the employee had no sales function or vendor/client-facing role, then returning the phone number may not be an issue.  However, if that BYOD telephone number has now become the main client contact – and regrettably there is no contract or policy to reserve the employer’s right to keep the number – the settlement negotiations will need to include the issue of who keeps the number.

4) Who owns the digital assets on the phone?  While most info is hopefully backed up on the main server, is there anything stored locally on the phone that needs to be wiped and/or that suggests the phone should be returned to the company?  No employee can walk out with a phone full of client information, particularly if the information is organized in a customized company software program or internal database.  Employers will have a hard time, however, asserting proprietary rights over publicly available information.  Twitter followers, LinkedIn contacts, and other sources of client information which are otherwise available to the public are increasingly up for grabs.  While employers can generally assert ownership over other company-related content stored on the phone, such as business plans, agendas, documents, unique software, etc., contacts remain a difficult battleground, depending on how they are organized and collected on the device.

5) Policies… Yes, hind-sight is 20-20, and as you sort through the terminated employee’s requests, it will become clear that a restrictive covenant provision in an employment agreement, along with a BYOD and computer use policy, would have been handy.  Ownership of the digital assets is not always clear, particularly on someone’s BYOD device.

6) So just wipe the device altogether to be safe?  No.  Good grief no.  Employees do have an expectation of privacy.  You can diminish that through comprehensive and crystal clear policies, but at the end of the day, employers are looking for a headache if personal photos are wiped, email accounts cleared out and contacts denied without notice.  The conversation and process for disentangling an employee from the mothership needs to become a regular step of the process, because no matter how much an employer may want to keep a thick line between work and personal lives, that’s not the world we live in anymore.

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Lisa Stam

Founder of Spring Law, Employment and Labour Lawyer at Spring Law
Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technologyinthe workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media andtechnology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.
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