By Jack de Flamingh and Phillip Magness -
Snapshot
- Employers may inspect an employee’s mobile phone where there is an express contractual right or where it is a reasonable and lawful direction, but the bar for reasonableness will be high.
- Employees should not assume that a mobile taken to work is beyond an employer’s reach.
- Employers can monitor employee use of corporate WiFi, provided they have the requisite policy in place.
There is no general right at law for an employer to search an employee’s property. The right is typically enshrined in a contract of employment or based upon a reasonable and lawful direction (often reflected in a workplace policy). The courts have considered and accepted the right of an employer to search an employee’s locker or bag in limited circumstances.
The changes that technology has brought to how people work extend to what they bring to work. Mobile phones are a fundamental tool to many workers, or at the very least, an accessory that is brought to work each day and used at work. At the same time, it has also spawned increasing employer concerns about the security of confidential information and protection of intellectual property. The reduced direct visibility or control over an employee’s activity at work has been replaced with an increased surveillance and workplace monitoring.
