Sara Boyns, Workplace Law: Workplace use of smartphone applications - Monterey Herald
Question: My business was approached by a company proposing we use one of their new smartphone applications to allow employees to clock in and out for work, communicate about schedules, address work-related questions, and provide employees access to company-related resources. Are there any issues with asking my employees to download applications on their cell phones to use to record time and communicate about business-related matters?
Answer: From the advent of the office personal computer in the 1980s, and the internet in the 1990s, businesses have often looked at technology as a resource to assist employees in performing their work. Many employers are using software applications that allow their employees to access company technology resources in the office and remotely. The COVID-19 pandemic has accelerated the use of applications and other remote resources, blurring the traditional lines of how and where employees can complete work.
Some of these innovative applications go beyond teleconference features (e.g., Zoom, RingCentral), and offer workplace message/collaboration features (Slack, WhatsApp, Outlook, etc.), shared access to files (e.g., DropBox), and timekeeping (Buddy Punch, Hubstaff and others). While employees may find these easy-to-use applications convenient, there are some legal considerations that should be evaluated, including:
1. Off-the-clock work: This occurs when a non-exempt employee performs work away from the office and does not record this work time. When non-exempt employees use their cell phones to check email, answer calls, or communicate on workplace issues, this time is considered “hours worked” under California law and must be compensated even if these tasks are done outside of the workplace or a normal work schedule.
2. Interruption of meal or rest periods. If an employee takes a call or uses a work application while on a meal or rest period, this may hamper the employee’s ability to take an uninterrupted, off-duty rest or meal period. Employees should be advised not to answer calls or perform any work during their meal and rest periods.
3. Harassment and Privacy Issues. Employers need to make sure that employees do not misuse workplace applications to engage in inappropriate contact with one another. Employers should also put appropriate safeguards in place to protect confidential and proprietary information. Private personnel information such as employee medical information and leave requests should not be on shared applications that are accessible by co-workers.
4. Expense reimbursement. When employees use their personal cell phones for work-related tasks, California Labor Code section 2802 requires the employer to reimburse for the costs associated with that cell phone use. This is true even if the personal cell phone is rarely used for work purposes. One simple way to accomplish this is to pay a reasonable fixed sum per month as a cell phone reimbursement.
5. Maintaining employment records. California law requires employers to retain personnel and pay records for a minimum of four years. Employers need to be able to retain and produce timekeeping documents that are recorded on a cell phone application.
As the use of technology in the workplace continues to evolve, employers need to ensure employees are properly compensated, keep accurate pay records, and safeguard business-related information. If your company decides to use smartphone software applications, it is prudent to adopt written policies to define appropriate use of the applications and provide training for employees to effectively use the applications.
Sara Boyns is a lawyer with Fenton & Keller in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Mail queries to “Workplace Law,” c/o The Monterey Herald, Box 271, Monterey 93942 or to [email protected].
source: https://www.montereyherald.com/2022/02/03/sara-boyns-workplace-law-workplace-use-of-smartphone-applications
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