In today’s society, almost everyone has a cell phone. And while the primary purpose of cell phones used to be to make and receive phone calls, cell phones are now used not just for communication, but also as a form of entertainment and for web browsing. Cell phones are also used to keep schedules and conduct important business. In short, cell phones contain a significant amount of personal information, including passwords, contacts, and private communications. Given the enormous role cell phones have in our lives, it is clear why many are concerned about an employer’s ability to search an employee’s cellphone. It will come as a relief to many that, as a general rule, a Texas employer cannot conduct a search of an employee or their belongings against their will. This includes an employee’s personal cell phone. That being said, if an employee is using a company cell phone, the employer will likely be determined to have a possessory interest in the phone, and as a result the employee will have a greatly diminished expectation of privacy in the contents of the phone.
Of course, an employee is entitled to greater privacy rights when it comes to their personal cell phone. However, that does not prevent an employer from asking an employee if they will consent to a search. If an employee feels pressured by the fact that their supervisor asked to search their phone and the employee agrees, the search will likely be considered a legal one. However, an employer cannot use excessive force or make threats to obtain an employee’s permission to search their cell phone.
A coerced search is uncommon, however, because those employers who foresee the need to search an employee’s cell phone are likely to be proactive in obtaining employees’ consent. Indeed, the Texas Workforce Commission recommends that employers should have a written cell phone policy stating that “the employer reserves the right to physically and digitally search any devices with storage or memory capabilities that they might bring to work.” Absent such a policy, an employer’s search of an employee’s cell phone may constitute an invasion of the employee’s privacy.
The mere existence of a written policy does not necessarily mean that it will be upheld if challenged. For example, the employer should be able to show that the policy was enforced in a consistent and fair manner. Otherwise, such a policy could be a pretext for discriminatory conduct.
Is Your Employer Violating Your Privacy?
If you believe that your employer has taken steps to invade your privacy, you should consult with the attorneys at Rob Wiley, P.C. Attorney Rob Wiley is board certified as a specialist in labor and employment law by the Texas Board of Legal Specialization, and he has assembled a team of skilled Texas employment lawyers to help represent Texas employees who have not been treated fairly by their employers. Whether your dispute involves outright discrimination, the payment of wages, or an invasion of privacy, Rob Wiley, P.C. can help. Call 214-528-6500 to schedule a free consultation today.
More Blog Posts:
ADA Guidelines Regarding Disclosing Disabilities During Interviews, Dallas Employment Lawyer Blog, June 29, 2018.
How a Texas Employee Can Prove a Case of Employment Discrimination, Dallas Employment Lawyer Blog, May 2, 2018.