In Focus: Can Employers Ask Employees to Show Them Their Cellphones?

By Allen Smith, J.D. Feb 27, 2017
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Press Secretary Sean Spicer is trying to crack down on leaks coming from the White House, with the president's attorneys conducting random phone checks of White House staffers. Is that legal?

White House Lawyers Randomly Check Staff Phones

In an emergency meeting, White House staffers were told to put their phone on a table for a "phone check," to prove they had not had unauthorized correspondence with the media. They also were warned that using texting apps that automatically delete texts after they are sent violated the Presidential Records Act. (Politico)

Privacy in the Workplace

Invasion of privacy laws vary from state to state, but generally provide that an employer can't intentionally intrude on the private affairs of an employee if the intrusion would be "highly offensive to a reasonable person." Whether an employer may lawfully look at an employee's phone may depend on whether the phone was employer-provided or the employee's own phone, particularly if the employer tells workers they have no expectation of privacy regarding calls, e-mails or texts sent on a company phone and the employer reserves the right to monitor work phones. (SHRM Online)

Can the White House Search Staffers' Phones?

But even an employee's own phone might be searched if an employer has a reasonable cause for an investigation or an employer has a workplace policy that minimizes an employee's privacy expectation. (Bloomberg BNA)

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Efforts to Stop Leaks Not Working

Spicer reviewed government-issued and personal cellphones. He also asked staff not to leak information about his efforts to crack down on leaks, efforts that were promptly leaked. (CNN)

More Checks to Come

Spicer reportedly cautioned that the initial search would be "recess" compared to what awaits staffers if the leakers aren't discovered. (Fox News


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