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Is it legal for an employer to search an employee's cell phone? Many employees don't realize that while they are at work, their privacy rights may be limited when it comes to digital data.
For example, employers can legally monitor employee email communications under certain conditions (such as in response to another employee's harassment complaint), if the employee is using a company-owned device (like a company-issued laptop).
So are employers allowed to search their employees' cell phones? It depends. Here's a general overview:
Employees generally have very little privacy when it comes to work phones. Company-issued cell phones are just like any other piece of property issued by the company, such as a work computer. As with work-issued computers, an employee does not have an expectation of privacy on their company-issued cell phones.
While this does not mean that employers can freely listen in on every employee's conversations on their work phones, this does still allow employers to monitor some activity (including reading text messages) on a company-owned cell phone. If the employer is investigating a security breach, for example, then it may be OK to search an employee's work phone.
Personal cell phones are not company property. It's best, however, to include a provision on personal cell phone usage in your workplace policy.
For example, the Texas Workforce Commission advises that a company cell phone policy:
should make it clear to employees that the employer reserves the right to physically and digitally search any devices with storage or memory capabilities that they might bring to work and to make copies of any files found therein.
Courts have generally ruled that when there is a written policy putting employees on notice that usage of their communications devices are subject to monitoring at work, employees have no expectation of privacy, and their devices may be subject to search. This can, however, turn on a number of factors, like whether or not the policy was actually enforced.
If you're unsure of whether or not you're allowed to search your employee's cell phone, it's best to consult with an experienced employment attorney first.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.