Southern California Record

Tuesday, January 28, 2020

Los Angeles attorney says use of workplace apps by employers may come with legal risks

Attorneys & Judges

By Kyla Asbury | Oct 21, 2019

Phone 02

LOS ANGELES – While having digital workplace applications is a growing trend, a California defense attorney believes companies need to tread lightly to avoid litigation.

Evan Moses, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart in Los Angeles, said plaintiff's attorneys are increasingly targeting users of employer apps or using them to help identify targets for litigation.

"This is the next trend that is in development," Moses said"There is a wide-ranging landscape when it comes to apps."

Evan Moses | Ogletree Deakins

Moses said the focus among trial attorneys on app users can also coincide with the California Private Attorneys General Act (PAGA), which allows for private attorneys to enforce California's expansive labor code.

"Some companies have more traditional applications, but other companies are trying to establish a new trend of integrating everything into an app," Moses said. "This is on the cutting edge of technology with integrating a lot of those things into a single platform."

Moses said it makes it more difficult for an employer to say that the use of the app isn't required and, until recently, the primary argument was that this is provided for employees' benefit. However, employee management available through one mechanism makes it harder to say it is not required.

The new trend in apps is that they are all-encompassing and contain things like new policy information, timekeeping, scheduling and more all in one place. 

Moses said some attorneys are targeting specific apps instead of specific companies.

"You'll see the plaintiffs' side soliciting online saying, 'If you're a user of this app, contact us, you may have wage and hour claims to investigate,'" Moses said.

Moses said social media ads are helping identify targets.

"They’ll make the statement that they’re investigating allegations relating to users of the app," Moses said. "Then people who use that app will contact their attorneys, mention employer, then the plaintiffs' attorney will decide if it wants to make a claim."

Moses said he sees apps being implemented across the board and not just specific types of employees, like remote workers or non-traditional employees.

"The trend is the convenience," Moses said. "It’s cost-effective. That’s why employers have to be careful with the risk. There are so many potential uses; you just have to be careful."

Moses said there is a significant appeal to letting people use their own devices and allowing them to use the app on their phones.

"But, that also raises legal questions with compensability," Moses said. "Do you have to reimburse them for using their phone? For data usage, Wi-Fi or cellular minutes? Is the time they spend on it compensable time? Those are the legal questions employers need to consider before using these apps."

Moses said employers need to be cautious when creating their apps and adding things to it.

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