Labor & Employment Developments Blog

Many employers are using or considering using smartphone apps for their employees.  In such cases, employees download an app that can be used for a variety of purposes, including employee engagement, communication, work assignments, route and delivery information and more.  While apps can be helpful, they also raise many employment law issues, including the following:

1. Reimbursement: Two states – California and Illinois - have statutes specifically requiring reimbursement for required employee cell phone use. Several other states have statutes that arguably require cell phone reimbursement, including: Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, Pennsylvania, and District of Columbia.  
   
   
2. Wage and Hour Issues: The FLSA requires that employees be paid for all hours that the employer “suffers or permits” to be worked. When employees have an app on their phone, it opens the door to a lot of unauthorized work time related to using the app, checking messages, etc.  App usage can also raise issues with break and meal time laws and minimum wage violations.
   
   
3. Discrimination: If employers require the use of an app, employees must have a smartphone.  If employers do not provide the phone, it becomes a condition of employment and employers may face claims that the requirement constitutes discrimination based on legally protected characteristics related to smartphone ownership.
   
   
4. Privacy: Placing an app on a personal phone that tracks and gathers data (e.g. location) creates possible privacy issues. Most of these issues can be addressed by obtaining authorizations from employees regarding their reasonable expectations of privacy and limiting data collection during non-work hours. 
   
   
5. Safety: Having employees who drive use an app presents an inherent risk that needs to be addressed. Any accident that occurs due to distracted driving related to the employer’s app presents a risk of substantial liability.  Similarly, distractions caused by app use in other potentially hazardous environments should be considered as well.

Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.

You can listen here.