As such, an employer should be cautious in rejecting a job candidate or disciplining or terminating an employee for online activity to ensure that adverse action is not taken based on legally-protected activities by the individual. • Photography and Recording : Smartphones and other mobile devices make it far easier than in the past for employees to secretly record conversations at work or to take unauthorized photographs or videos that might be widely disseminated on the Internet and go “viral.” Depending on the employer’s business and its unique risks, a technology policy might include language prohibiting the use of devices to make recordings or take photographs or videos. However, employers must be careful not to draft a policy that might run afoul with the NLRA. Any such policy should limit discipline to conduct that either (1) violates state law; (2) targets coworker(s), as opposed to supervisors or managers; or (3) can be deemed “egregious” or grossly inappropriate (whether the recording was taken in secret can be a contributive factor). • Return of Company Data : An employer should make clear that all company data, including any electronic data stored on an employee’s personally-owned devices, such as a smartphone, tablet, or personal computer, must be returned to the company upon request or when an employee leaves employment. An employer that has a BYOD (bring your own device) approach to workplace technology should consider including language in a technology policy stating that employees agree to turn over their personal devices to the company to permit the company to wipe any company data from the device. Many companies have the capability to remotely cut off access to company technology and to remotely wipe company-owned or employee-owned devices.
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