I read a very interesting and informative article over at TechRepublic recently. TechRepublic is one of the most authoritative online tech journals you can read, and one that I follow to assist me in preparing posts here at Cyberesq. The subject of their timely article, “10 Android Apps That Could Get You Fired,” reminds us of the need to think about the technology we use or, possibly, mis-use. Being reminded is important for us as attorneys, whether we are employees of a firm, employers of others, or counseling clients about the legal implications which follow from use/mis-use of technology.
As most of you know, mobile apps are a huge part of the tech field right now, and their presence – if not pre-eminence – is only going to increase. Without putting too glib a spin on it, there literally is an “app for that,” except “that” equals “everything in the world.” Strain your imagination to think of the most outlandish, off-the-wall, or even illegal topic that one might make into a smartphone app. Chances are, it has already been made, or something very much like it.
Because smartphone use is increasing rapidly, according to a new study by the Pew Internet & American Life Project, it logically follows that more apps will be downloaded and used by consumers. These will not always be innocent apps that will make the best Android apps for kids list. Unfortunately, employees will sometimes use apps (or some other technology or device, as we are not picking solely on Androids) that harms, or has the potential to harm, the employer or the workplace. Maybe its a legitimate technology or device, but use could denigrate the employer’s reputation if found out by a customer, client or the public. Maybe it boils down to something simple – when the employee is on their Android using “such-and-such” app, they “aint gettin’ the job done.”
Employers have a right to be concerned, but the line between acceptable and not may not always be clear. For example, consider whether it is humorous or potentially dangerous for an employee to have an app called “Serial Killer Quote of the Day.” Does having such an app, in itself, indicate bad behavior by the employee? Maybe, maybe not. However, evidence of a defendant researching how to make chloroform – evidence that was culled from her computer – was introduced in a recent, very highly publicized murder trial, the Casey Anthony murder trial. Suppose instead the evidence had been an app, often used or visited, called the “How To Make Chloroform” app? Is that any different than the Casey Anthony evidence? In fact, it almost sounds more ominous, does it not?
And yet, some jurisdictions prohibit employers from taking adverse employment actions based on employee conduct outside of the workplace or during non-work time. California has such protections in its Labor Code section 96(k), which permits the state authority to accept claims involving “loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” Assuming an employee is not on the job while using the app or other techy gadget, protections like California’s ought to apply.
Even in California, however, such protections are less than exemplary. Therefore, if you live in a jurisdiction that does not have any statutory or judge-made protections that would exonerate off-work conduct, then you could very easily be terminated, or have other adverse employment actions taken against you (e.g., demotion, suspension, transfer, etc.), if an employer took issue over your use of an Android or other tech device.
Of course, employers cannot violate an employee’s right of privacy either. For example, if an employer surreptitiously looks into an employee’s Android phone to find out information, and then takes the adverse employment action based on what is discovered, the employer is going to be in hot water for invasion of privacy and possibly other claims by the employee.
However, what about a situation where an employee is using a smartphone or other tech device issued by the employer? In that case, an employee is in much greater jeopardy. Generally, an employee does not have a reasonable expectation of privacy to information kept on equipment belonging to the employer. On the other hand, courts have not always decided for an employer where doing so would waive important societal protections like attorney-client privilege. Often, cases of that kind turn on whether the employee was acting in derogation of a known company policy prohibiting use of the device or technology at issue.
The bottom line: Apps are not just games or some kind of “widgetry.” Some are provocative, libelous, graphic or pornographic. Take a look at the TechRepublic article for the 10 big offenders. Don’t forget also that, even if the app, technology or device at issue is what I term “widgetry,” an employee still can suffer adverse employment action because they are busy with the “widgetry” and not getting their job done.