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Brandon M.
Brandon M., Counselor at Law
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Experience:  Attorney experienced in numerous areas of law.
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I live in North Dakota. I have my own iphone, with a company

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I live in North Dakota. I have my own iphone, with a company paid plan. Recently, I left my iphone in my boss's office. She went through it, and read most of my text messages. Is it legal for my employer to look at my text messages if I own the smartphone with a company paid for plan? Thanks.

Brandon M. :

Hello there.

Brandon M. :

Thank you for your question. You said that you have your own iphone with a company paid plan. When you say that you have your own iphone, do you mean to say that the the iphone itself is your personal property, or do you mean to say that you have exclusive use of the iphone even though it is the property of your employer?

Customer:

Hello,

Brandon M. :

Hello.

Customer:

Thank you for your help. My iphone is my personal device. I paid for it myself.

Brandon M. :

Interesting. Why is the company paying for the service plan on your personal phone?

Customer:

My company is owned by Pinnacle Entertainment. They're a gaming company based in Las Vegas, Nevada. Last year the purchased my company from of bankruptcy auction after the original owners sold to another company that took it into bankruptcy. Pinnacle Entertainment retained myself, and my current boss. To stay on and run the company. It's been close to a year since the purchase. The agreement I had with the original private ownership was that I would purchase my own phone, and the company would pay for the plan. Pinnacle agreed to continue with that agreement. My job has me on my device constantly with emails, text messages, and social media. As far as I know, there is no formal privacy policy with my iPhone, or at least I haven't been informed of it. I'm certain there wasn't one under the original private ownership.

Customer:

(I apologize for all the typos)

Brandon M. :

Ok, so the idea is that the company is providing you with the plan so you can conduct company business on your personal phone, correct?

Customer:

Correct. They also know it's used for personal use as well.

Brandon M. :

You mentioned that you live in North Dakota, but you travel and the company is based in Nevada. Where did the intrusion occur?

Customer:

That's correct. My offices are based in North Dakota. I pay North Dakota State taxes

Customer:

I'm sorry, the intrusion occurred here in North Dakota

Brandon M. :

Thanks. I'm going to type out the answer now. This will take a few moments. Thank you for your patience.

Customer:

No problem. Thank you for your opinion.

Brandon M. :

Thank you so much for your patience. A response normally does not take so long, so thank you for sticking with me. I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with an attorney who can examine the content that was actually viewed. That said, there is generally not an expectation of privacy when an employee uses an employer's electronic device. In those situations, the device is considered company property, and the company is presumed to have an interest in any business conducted on the device. However, the situation changes when it is the employee's personal device that the employee happens to use for their business as well. In those situations, the employer does not have a presumption of dominion over the device and everything on it. Aside from text messaging, emails, etc., a personal device may contain notes, calendars, etc. that the employer has no business or interest in accessing. If personal text messages that were sent outside of business hours or operations, that would typically be an illegal intrusion of privacy, assuming that there was no prior agreement as to what information would be private.

That said, the bigger problem is actually usually one of damages. Although an employer may be liable to an employee for invasion of privacy, the employee is generally entitled to those damages actually suffered. If sensitive information was discovered that adversely affected the employee--for example, a private health condition--or something especially embarrassing, then the argument for damages would be much stronger. However, the mere offensiveness of the intrusion itself would typically not result in substantial damages.

Brandon M. :

To your knowledge, was anything particularly sensitive viewed by your employer?

Customer:

Yes, she saw a text message between myself and one of the original private owners of this company. I made some disparaging remarks about her. Nothing severe, just a negative opinion of how she's dealing with a project. She confronted me when I went back to her office to retrieve my phone that I left behind. She said, "yeah you might want to put a password XXXXX that." Confused, I said, "What?" She then yelled at me to get the "F" out of her office.

Brandon M. :

Charming.

Customer:

right?

Brandon M. :

Definitely.

Customer:

If I were to be fired would that constitute damages?

Brandon M. :

I mention again that the nuances of every situation is different, so at a minimum, the device and messages would have to be examined by an attorney in person. That said, when an employer terminates an employee for information discovered during an illegal, unauthorized search of the employee's property, that would typically constitute damages that could be recovered in a lawsuit.

Customer:

Okay, thank you very much for your time. Have a great night.

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