The Legalities and Benefits of Employee Cell Phone Monitoring

What can you monitor on an employee’s cell phone legally?

The legality of employee cell phone monitoring varies based on whether the device is an employee’s personal cell phone or a device that your business pays for and provides.

Monitoring an employee-provided cell phone legally

If an employer provides an employee with a smartphone, any data created, used or accessed on that device is owned by the employer, according to Michael Trust, human resources director at Myman Greenspan Fox Rosenberg Mobasser Younger & Light. “The company owns the phone and the data and can review any and all of it at any time and for any reason,” he told business.com. This can include phone calls, voicemails, text messages, instant messages – such as WhatsApp and Facebook Messenger communications – emails, GPS locations, photos and web browsing history.

Minimizing liability when monitoring employee cell phones

Even though you may have a legal right to the data on your company cell phones, you still need to take legal precautions by creating a clear and comprehensive monitoring policy that discloses what information you are collecting and how you’re using it. This written policy should be signed by each employee who will be monitored.

“If the business does not have a policy like that or has one and never enforces it, then employees may have some reasonable expectation of privacy in personal information on the phone or use of the phone,” said David Miller, a retired labor and employment attorney. “If the company accesses private information, particularly information a reasonable person would expect to be confidential, it could be vulnerable to a lawsuit.”

Miller added that public sector employers face the added restrictions of the Fourth Amendment prohibition of unreasonable searches. Establishing a clear policy that removes the expectation of privacy is key to legally tracking employee cell phones.

>> Read next: Employee Rights You’re Violating Right Now

Personal cell phones for business use

Be wary of employees who want to use their personal devices for business activities, because this brings up a whole different set of monitoring issues.

Trust shared five common problems associated with employees using their own cell phones for business purposes:

1. It can be difficult to get company data off a personal phone.
2. The employee might not allow you to review the phone’s contents.
3. You have far less control over what they are doing on the phone, particularly with sensitive data or any illegal acts.
4. You have no idea what they may be accessing on the phone unless your systems log it on the server side.
5. In some states, you may have to reimburse the employee for the business use of their personal cell phone.

“There is software that can be installed on a personal cell phone to segregate personal and business files and the company would retain the ability to wipe the business side and to see what was occurring,” Trust said. “That’s the hybrid solution, but it still may require, depending on [the] jurisdiction, reimbursement for usage overall.”

What does the law say about monitoring employee cell phones?

The federal Electronic Communications Privacy Act of 1986 (ECPA) governs the privacy of cell phone data while it is being created, sent or stored. This law is widely said to forbid monitoring employee cell phone activity unless a company can present a valid business reason for doing so or obtain employee consent first. What “valid” means in this context is open to interpretation.

Some states have their own employee monitoring laws — and, in some cases, these laws have been on the books for decades. Since 1998, for example, employers in Connecticut cannot eavesdrop on or tamper with employees’ phone conversations. Conversely, in California, employers can monitor workplace phone calls and voicemail legally if there’s a valid reason for it. In New York, employee cell phone monitoring is legal if you provide written notice to employees before you hire them. Consult legal counsel to understand your state’s laws.

What are the benefits of monitoring employee cell phone usage?

Monitoring how employees use their company-issued cell phones can be very beneficial to your business. For starters, cell phones are more portable than computers and typically offer more insight into an employee’s behavior (especially regarding conversations and locations). Although the specific advantages you can gain from monitoring employees depend on the employee tracking solutions and policies you implement, below are some of the most common benefits:

• Identifying illegal activities: If an employee is using their mobile device for illicit activities, such as theft, gambling, pornography, drug dealing or harassment, you can identify it quickly and follow through with the appropriate disciplinary and/or legal actions.
• Verifying data security: It is essential for companies to secure digital assets like business data and trade secrets. Monitoring employee cell phones can show you if or how an employee is inappropriately sharing information. Additionally, you can see if they access malicious content like malware, whether intentionally or unintentionally.
• Tracking employee locations: Most cell phones have GPS tracking capabilities, which you can pair with the best employee monitoring software to track and verify employees’ locations. This is especially useful for staffers who work in various locations.
• Gauging employee productivity: You can track employee productivity through their cell phone usage. For example, Trust said a business could verify that a team member met their quota for a number of sales or customer service calls by looking at their phone data.
• Monitoring app and data usage: You may want to see if employees are using their company-issued phones for nonbusiness purposes. If a worker is making lengthy personal calls or using a significant amount of data for personal reasons, it can cost your business a lot of money.
• Ensuring legal compliance and protection: Companies in highly regulated industries, like health care and financial services, can certify that employees’ mobile device usage adheres to legal guidelines. If an accident happens or a staff member or customer seeks litigation, you can use the cell phone data as legal protection for your business.
• Protecting company reputation: In some circumstances, Miller said, a cell phone is identifiable to others as associated with the company. “In that case, the employee-user may be reasonably perceived by others as a representative of the company and her conduct on the phone or other use of the phone may reflect on the company.” You can monitor the phone’s activity to ensure the employee isn’t doing anything that would hurt your business’s brand.

How do you implement employee cell phone monitoring legally?

There are multiple ways to monitor employees’ cell phone usage. For example, you can perform manual monitoring by checking phone records and mobile phone bills, or you can install a tracking app on each device. You will likely need to create a hybrid solution to best support your needs for monitoring. 

After speaking with experts, we developed the following process for implementing an employee cell phone monitoring program.

1. Establish what type of monitoring you will implement.

As previously mentioned, there are several ways to track how employees use their company-owned mobile devices. You first need to identify your reasons for monitoring, such as security, productivity and legal compliance, and then look for a solution that meets those goals and works with your equipment. For example, cell phone monitoring software like InterGuard and Cocospy is available for iOS and Android devices and other software is available to block specific websites and applications. You’ll have to determine what combination of tools best suits your needs. [Check out our comprehensive review of InterGuard.]

2. Create a written policy, disclose it to employees and get their signatures.

Once you’ve decided on an employee monitoring solution, create a written acceptable use policy governing company communications devices. The policy should clearly outline limitations on usage, detail what is being monitored and spell out any disciplinary actions for noncompliance.   

“The policy should also state that the employee has no expectation of privacy regarding any use of the equipment or anything stored on it and that the equipment is subject to examination by the company on demand,” Miller said. “A policy like this, clearly communicated, eliminates any argument an employee might have that his privacy was invaded if and when the company looks through the phone or monitors its use.”

It’s critical to tell employees you’re monitoring them. Review the policy with your employees and have them sign a statement agreeing to the terms. 

3. Monitor and enforce your policy.

Once you start monitoring your employees, provide periodic training to keep them up to date on your guidelines and expectations. Inform your team of any new surveillance features and enforce the monitoring policies uniformly across your organization.

“Any illegal activity found by the [monitoring] software can be used for disciplinary action – perhaps even termination – in accordance with your organization’s policies and procedures,” Trust said.

You can make monitoring employee cell phones legal

Setting clear policies, establishing a valid reason for monitoring employee cell phone activity, getting consent and communicating empowers you to legally monitor employee cell phone activity. You may uncover illegal phone use, boost your productivity and maximize your cybersecurity. Sure, monitoring might seem risky, but with top-quality technology and input from legal counsel to ensure you’re doing it right – you might reap lots of benefits.

Source interviews were conducted for a previous version of this article.