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.