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Who Owns a Mobile Phone or Smartphone Used for Work?

July 29, 2022/in Blog, Employment

Employees and workers frequently ask who owns a smartphone that is used for work purposes. The answer is, it depends. Many companies provide mobile phones to employees for work-related use or cover the costs of personal phones as part of a benefit policy. Usually, the question of ownership doesn’t arise. However, if you find yourself […]

What If I Fail a Drug or Alcohol Test at Work?

July 16, 2022/in Blog, Employment

Employer-administered drug and alcohol testing in Minnesota is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). If your employer or prospective employer requires you to take a drug or alcohol and you fail, you have certain legal rights. If you test positive, you must be given written notice of your […]

Who Owns a Mobile Phone or Smartphone Used for Work?

July 29, 2022/in Blog, Employment

What If I Fail a Drug or Alcohol Test at Work?

July 16, 2022/in Blog, Employment

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Who Owns a Mobile Phone or Smartphone Used for Work?

July 29, 2022/in Blog, Employment

Employees and workers frequently ask who owns a smartphone that is used for work purposes. The answer is, it depends.

Many companies provide mobile phones to employees for work-related use or cover the costs of personal phones as part of a benefit policy. Usually, the question of ownership doesn’t arise. However, if you find yourself tied to a company lawsuit, you or your employer may be required to provide data from your phone (such as text messages, emails, or call logs).

In these situations, the question is less about who owns the phone and its data and more about whether the person or organization to which a request for data is directed possesses, has custody of, or controls the device and its data. Fed. Rules Civ. Proc. R. 34(a)(1).

The Federal Rules of Civil Procedure do not define “possession, custody, or control,” and courts across the country have varying interpretations of this phrasing. In Minnesota, courts have held that a person or organization possesses, has custody of, or controls any data it has the practical ability to obtain. The practical ability standard requires that a party preserve, collect, search, and produce data it has the practical ability to obtain regardless of that party’s legal entitlement or physical possession of the device.

Whether the mobile phone in question was employer-issued may impact the question of practical ability. If the phone was employer-issued, the argument could be made that the employer has custody of the device and controls all its data. This argument is strongest when:

The employer notified the employee upon issuance that the device and its data was and would remain employer property;
The employer notified the employee that the device usage could be monitored, with no expectation for privacy;
The employer audited employee use of the device; and
The employer notified employees following detection of any inappropriate use.

That said, “bring your own device” (BYOD) policies, requiring employees to use their personal devices to conduct business, have become more common. In one specific example, the Sedona Conference has taken the position that employers who have enacted a BYOD policy do not have legal control over personal text messages when the policy does not assert employer ownership over the texts. (The Sedona Conference, Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, 19 Sedona Conf. J. 495, 531 (2018).)

Ultimately, the question of employer ownership and the “practical ability” to obtain personal device data, especially under BYOD policies, is often context specific. Employees should read all device policies carefully. In cases where specific policies don’t exist, employees should understand the risks associated with using personal devices to conduct work-related activities (e.g., being asked to hand over data housed on your personal phone). Given the intricacies tied to this question, you should seek out specific advice about your obligations and rights regarding data stored on both employer-issued and personal mobile phones.

What If I Fail a Drug or Alcohol Test at Work?

July 16, 2022/in Blog, Employment

If you test positive, you must be given written notice of your results and your rights under DATWA.[1] Your employer may require you to provide information on medication you take or other information relevant to an explanation of the positive test result.[2] Your employer must cover the cost of the initial test and a confirmatory test. The employee may request a confirmatory retest at their own expense. You have the legal right to submit information that explains your positive test result within three working days of receiving notice of confirmatory test results.[3] Within three working days, you may also request a confirmatory retest of the original sample at your expense.[4]

If you test positive for a pre-employment drug or alcohol test associated with a conditional offer of employment, the offer may not be withdrawn based on the results of the initial test alone. To withdraw the offer for a positive test result, the initial test result must be verified by a confirmatory test.[5]

If you test positive while you are already an employee, you have a number of legal rights, and your employer is subject to certain legal requirements. First, your employer is not allowed to terminate your employment, discipline you, discriminate against you, or require rehabilitation on the basis of an initial test that has not been verified by a confirmatory test.[6] Second, if the positive result is your first positive result for that employer, your employer cannot terminate your employment unless you are first given the opportunity to participate in a drug or alcohol counseling or rehabilitation program and then you refuse to participate in or fail to complete the program.[7] However, your employer may temporarily suspend you or transfer you to another position pending the outcome of a confirmatory test or confirmatory retest if the employer reasonably believes this is necessary for safety reasons.[8]

If your employer or a prospective employer has not followed these legal requirements or retaliated against you for asserting your rights under DATWA, contact us. Our experienced employment law attorneys would be happy to discuss your case and help you understand your legal rights and options.

[1] Minn. Stat. § 181.953, subd. 6(b).

[2] Minn. Stat. § 181.953, subd. 6(b).

[3] Minn. Stat. § 181.953, subd. 6(c).

[4] Minn. Stat. § 181.953, subd. 6(c).

[5] Minn. Stat. § 181.953, subd. 11.

[6] Minn. Stat. § 181.953, subd. 10(a).

[7] Minn. Stat. § 181.953, subd. 10(b).

[8] Minn. Stat. § 181.953, subd. 10(c).

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