Bargaining and the Staff BYOD Policy

A growing trend among school districts across California is to allow staff and students to Bring Your Own Device (“BYOD”) to the school campus.  Staffs have, and many already use, their own personal devices, such as smartphones and iPad for instruction and administration due to the efficiency and capabilities of these devices.  BYOD can boost staff performance because it eliminates limitations as to where and when work can be performed.  Staff can now perform work almost anywhere at any time, and with the availability of information at their fingertips, staff can enhance student learning.  One of many consequences of BYOD is a blurring of the distinctions between the personal life and the work life of district staff.  Personal and work data are commingled on a single device, often without any way to separate the data into concrete and identifiable blocks.  Personal and work-related communications are commingled as staff text, call and instant message each other using their own personal devices and social media accounts.  Realizing the potential benefits and challenges associated with staff BYOD, some districts have already adopted policies regulating the use of BYOD by staff in their districts; others are eagerly preparing and implementing BYOD policies.

Before taking action to adopt a BYOD policy, one issue to consider is whether a BYOD policy is a negotiable item subject to the collective bargaining process under the Educational Employment Relations Act (“EERA”).

While the Public Employment Relations Board (“PERB”) has yet to consider whether a BYOD policy is a mandatory subject of bargaining under the EERA, PERB has addressed the adoption and implementation of acceptable internet and computer use policies.  In State of California (Water Resources Control Board) (1999) PERB Dec. No. 1337-S, PERB held that an acceptable internet/intranet use policy is negotiable.  PERB’s conclusion rested on the acceptable use policy’s identification of impermissible uses of the internet, such as for illegal or socially improper acts or use that impairs the efficiency of the network system.  The policy also included a provision that violation of the acceptable use policy could subject employees to discipline up to and including termination.  Identifying acts that are incompatible with state service is within the scope of representation under the provisions of the Dills Act, which is the counterpart to the EERA for state employees.  Accordingly, PERB held that identifying new incompatible activities was a negotiable subject and the Water Board violated the Dills Act by failing to give notice and an opportunity to bargain these provisions in the acceptable use policy.

More recent PERB precedent, however, has held that implementing an acceptable use policy, even if it includes a provision making employees subject to discipline for violating the policy, is a management prerogative and falls outside the scope of representation.  (Trustees of the California State University (2007) PERB Dec. No. 1926-H.)  In this ruling, PERB held that there is a distinction between the decision to implement an acceptable use policy and the actual subject matter contained within the acceptable use policy.  So, while the decision to implement a policy may be a managerial prerogative, if provisions contained in the policy are within the mandatory scope of bargaining, then they are negotiable.  PERB also cautioned that adoption of acceptable use policies do not relieve employers of the obligation to negotiate the effects of the decision if it implicates matter within the scope of representation, such as discipline and union access rights.

Again, while there is no precedent with regard to adopting BYOD policies, PERB cases on acceptable use policies provide a framework for analyzing whether the implementation of a BYOD policy, or any terms within the policy, are negotiable. BYOD policies can be seen as an extension of acceptable use policies to employees’ personally owned devices that are used for work purposes, and therefore, the same rules should apply.

However, BYOD policies can potentially implicate mandatory subjects of bargaining not implicated by an acceptable use policy.  For example, unlike acceptable use policies, BYOD policies potentially can impact employees’ hours of employment, as personal devices could be used virtually anywhere and at any time to perform district work.  This issue is of greater importance to non-exempt bargaining unit employees where it could potentially implicate overtime pay issues for work performed after-hours.

Due to the potential that BYOD policies have to implicate mandatory subjects of bargaining and to trigger the obligation to provide notice and an opportunity to bargain the effects of a management prerogative, districts should contact legal counsel prior to adopting a BYOD policy.  This will enable districts to better assess the current laws and obligations associated with BYOD policies and to avoid an unfair practice charge.

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