Negotiating the BYOD minefield


Many said it would never happen, but just as many big, private sector firms are ending their bring-your-own-device programs (BYOD, for short), the Department of Defense is starting one. DoD has announced a BYOD pilot program set to begin this summer.


Security concerns raised by employees’ use of their personal devices for work purposes are widely discussed, but there remains little guidance for employees coping with the challenges likely to arise from a BYOD policy. In light of this development, let’s review how to work with BYOD as an employment benefit instead of an employment headache.


Under most suggested policies, once you begin to use your smartphone or tablet for government business, your employer may access your smartphone at any time to seek substantive information and/or to ensure compliance with its BYOD policies. Know what policies your agency has on BYOD to ensure you comply with its terms. Ignorance of a policy is rarely a justifiable defense to a charge of misconduct.


Data meant to be shared with your friends may also be seen by your employer. Also be aware if you or your work-related duties catch the oversight attention of Congress, they may seek access to information on your personal device because you use it for work purposes. Currently, Congress is pursuing access to government officials’ personal email accounts used for work purposes, so it would not be surprising for Congress to one day seek access to your personal device to review it for government-related downloads or communications. While you may feel it is a fair tradeoff for your employer to have access to your device to ensure your work is conducted securely, you may not have the same feelings should members of Congress and their staff obtain access to your personal device.


Those of you who are managers with employees enrolled in their agency’s BYOD program face several challenges that may not be obvious at first thought. Try to ensure that your employees’ use of their personal devices is not running afoul of any collective bargaining agreement or federal wage hour law. Make sure that any after-hours communications or work is accounted for, to the extent it is required to be by law, office policies or by the agreement with the union. For example, for the non-exempt worker who requests overtime for work performed during his or her off duty hours, confirm that the work was performed as claimed, and then make sure the worker is appropriately compensated.


Where preapproval is required, let your employees know that just as when they are staying late or working at the office on the weekends, they need to obtain your advance approval for any work performed through their personal devices. This has long been an issue with employees who are issued government-owned devices, but for those employees who never had a government-owned device, they may not have been properly counselled on when or whether to work while off-duty.


You may also have concerns that your subordinates are using their personal devices during work hours on personal matters, and it is more difficult to make that determination when their smartphone has dual purposes. Using personal devices for work blurs work and personal lives, and they may need counselling or coaching on how to keep them from running afoul of agency policies and of the law. Employees need to keep in mind that although they don’t have a government-owned personal device, certain restrictions still apply during work hours or while on government property, such as any applicable Hatch Act restrictions. The use of a personal device for partisan political purposes won’t shield an employee who used his or her own device while at work or on duty.


That DoD is even launching a pilot program indicates that, while BYOD is a relatively new concept, it is likely here to stay. As with any new program, there are pitfalls that employees and management can avoid by understanding agency policies and communicating with one another. BYOD to work, but do so with caution.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to

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