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So uh, who keeps our stuff? Image

So uh, who keeps our stuff?

Posted by: Zach Graham

I learned early on as a staffing agent (my career before law school) that employee/employer relationships are a lot like dating. From the early-on internet stalking (LinkedIn), to the first date (job interview) to being “in a relationship” (“You’re hired!”), parallels exist at every level. Unfortunately, those parallels extend to breakups, too. And if your company offers a Bring Your Own Device plan (the “let’s get on the same phone plan!” phase) you might be left with the awkward question: who gets the phone number?

BYOD is a popular human resources program that reimburses employees for using their own phones. Employees like BYOD for lowering their bills and keeping their life simple with one phone number. Employers enjoy avoiding capital expenditures for new devices and being able to access their employees outside the office. While employers should implement careful policies to scrub employer data upon an employee’s exit, there’s usually little controversy over who is entitled to the actual device. But what about the number? The law is not entirely clear.

Transferring a number from one wireless provider to the next is called “number porting.” The Telecommunications Act of 1996 requires all major carriers to offer number porting when a customer switches providers. 47 U.S.C. §251. However, before porting a number, all major providers require account verification and authorization from the customer. Thus, from a practical perspective, whoever pays the bill and has their name on the account will determine whether the number can be ported. So, if the actual number is important to you as an employer, make sure the employee gets on the employer plan, rather than reimbursing the employee for a private plan.

Yet even when the employer provides the phone plan there remains the legal question of whether refusing to port a terminated employee’s number exposes the employer to liability.

Minnesota has yet to address the issue. Nationally, the federal appellate courts are divided.  The deep-South Fifth Circuit, where property rights reign supreme, and the New England First Circuit have held a phone number may constitute a unique property interest. See Matter of Sec. Inv. Properties, Inc., 559 F.2d. 1321, 1324 (5th Cir. 1977); Darman v. Metro Alarm Corp., 528 F.2d 908, 911 (1st Cir. 1976).  Conversely, the Second, Third, Seventh and Ninth Circuits refuse to recognize a private property interest in phone numbers. Bus. Edge Grp., Inc. v. Champion Mortgage Co., Inc., 519 F.3d 150, 154 (3d Cir. 2008); In re StarNet. Inc., 355 F.3d 634, 637 (7th Cir. 2004); In re Best Re–Mfg. Co., 453 F.2d 848, 850 (9th Cir. 1971); Slenderella Sys. of Berkeley, Inc. v. Pac. Tel. & Tel. Co., 286 F.2d 488, 490 (2d Cir. 1961).  The federal appellate court that includes Minnesota, the Eighth Circuit, has not weighed in on the issue.

Ultimately, there’s enough debate among the courts to allow a lawsuit to progress much further than any employer would like. The best way to avoid litigation is to contract out of it. If you are offering a BYOD program, and the number is important to you, make sure to get the employee to release any interest in the number at the outset.

This information is general in nature and should not be construed as tax or legal advice.