Sarah McKinin is a senior associate at the Federal Practice Group.
In an era of unprecedented crackdown on government “leaks,” it is important to be cognizant of both your rights and obligations as a federal employee. Recently, White House Press Secretary Sean Spicer gave the green light on random phone searches, leaving many government employees to question the legality of such a directive and wonder whether they would need to comply if faced with a similar order at their own agencies.
The short answer is that, regardless of the legality of the directive you should comply first, and then exercise your rights.
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As a federal employee, you are under an obligation to comply with the lawful directives, orders and/or instructions of those within your chain of command. Even if you have reason to believe a phone search directive, order or instruction violates your rights in some way, the safest approach is to first comply, and then complain about the matter after the fact.
The Merit Systems Protection Board, an independent quasi-judicial agency that regularly reviews disciplinary actions against federal employees, has historically lacked sympathy for employees who disregard or disobey a supervisory instruction, even when that employee may have felt he or she had good cause for refusing to comply.
By taking the comply-then-complain approach, you are in the best position to later challenge the agency action, while avoiding any charges of insubordination or failure to comply, which could jeopardize your job security and force you to attack the search from a defensive posture.
It is also important to note that while many federal employees may commingle their personal and work-related matters on their government-issued cellphone, thereby creating at least an arguable expectation that they should have some privacy with respect to the information on those devices, government employees do not in fact have a legally recognized expectation of privacy with respect to the government-owned equipment they use in and/or outside of the workplace.
Accordingly, if you are asked to turn over your government-issued phone for a search, you must do so. If you want to afford yourself further protections, carefully separate your work and private communications and only send the latter using your own devices.
Even better, keep your personal phone, tablets and other electronics in your car or otherwise outside of the federal workplace so they are not physically present to be searched if and when you are suddenly presented with a demand—legal or otherwise—to hand over your devices.
Another important facet of Spicer’s shakedown on phones is the call for allegedly random searches. If you believe a search is not random and that you specifically or a group of employees is being targeted for phone searches on the basis of age, sex, race, religion, national origin, color, disability, political affiliation, sexual orientation, or in response to opposing or reporting discrimination or fraud, waste, or abuse, such a search could be held unlawful, and you may have the right to seek redress for that action via a grievance, Equal Employment Opportunity complaint, Office of Special Counsel complaint, or through other means.
Obviously, it is shocking to many feds to be told they may be required to hand over their devices for inspection without warning. In many ways, the federal workforce is in uncharted waters right now. The best advice is to protect yourself by taking available precautions and knowing your rights and responsibilities.