By: Courtney King, Ice Miller

LEXIS PRACTICE ADVISOR RESEARCH PATH: Labor & Employment > Privacy, Technology, and Social Media > Monitoring and Testing Employees > Articles > Video and Audio Surveillance and Eavesdropping of Employees

Utilizing global positioning system tracking to monitor employees’ on-duty conduct is not uncommon. This article discusses a recently filed lawsuit that presents questions about the balance between an employer’s right to monitor and an employee’s right to privacy.

WITH THE TOUCH OF A SMARTPHONE APP, WE NOW HAVE instant access to otherwise inaccessible information. Like the rest of society, employers frequently take advantage of the benefits of recent technological advances. Many companies now provide employees with cell phones, laptops, or other electronic devices to increase efficiency. Certain apps allow employees to clock in and out from their smartphones, communicate with supervisors and clients, and participate in meetings from remote locations via video conferencing software. Some employers—particularly employers with field or mobile employees—also use smartphone apps to monitor employee productivity and performance during work hours. Utilizing global positioning system (GPS) tracking to monitor employees’ on-duty conduct is not uncommon. However, a recently filed lawsuit presents questions about the balance between an employer’s right to monitor and an employee’s right to privacy.

The Lawsuit

A woman recently filed a lawsuit in California state court alleging that her former employer fired her for uninstalling a GPS tracking app from a company-issued smartphone. Prior to her termination, plaintiff Myrna Arias worked as a sales executive for Intermex Wire Transfer, LLC. Arias’s job consisted of traveling throughout central California to persuade business owners to install the company’s money transfer machines. In April 2014, Intermex required employees to download “Xora,” a smartphone timecard app with a GPS function that “tracked the exact location of the person possessing the smartphones on which it was installed.” Arias alleges in her complaint that Intermex required employees to leave their smartphones powered on at all times.

Arias claims that when she and other employees questioned a manager about Intermex’s use of the app’s tracking data, the manager admitted that Intermex would monitor the employees’ off-duty movement. According to Arias, the manager even bragged that whenever Arias drove her car, he could tell how fast she was driving. Arias told the manager that she had no issue with the company monitoring her on-duty activity, but monitoring her location during non-work hours served as an illegal invasion of privacy. She likened the app to a prisoner’s ankle bracelet. In response, the manager advised Arias that she should simply accept that Intermex would monitor her activity because Intermex paid Arias more than NetSpend Corporation—a rival company where Arias worked part-time. According to the complaint, Arias ultimately uninstalled the Xora app from her company-issued smartphone “in order to protect her privacy.” Intermex terminated Arias’s employment a few weeks later. Arias also claims that NetSpend fired her because Intermex’s CEO told NetSpend’s vice president that Arias was disloyal because she had also worked for Intermex.

Arias’s lawsuit accuses Intermex of invading her privacy, wrongful termination, unfair business practices, retaliation, and other related claims. She seeks $500,000 in lost wages.

GPS Tracking and the Law

Generally, courts have found that an employer’s use of GPS tracking technology is reasonable and not necessarily an invasion of an employee’s legitimate expectation of privacy. These decisions have essentially been based on the rationale that employers are expected to monitor employee performance in the workplace, so it follows that an employer would monitor an employee whose workplace happens to be her car. However, does this type of monitoring turn from reasonable to invasive when it extends to an employee’s offduty conduct?

No federal statute directly regulates private employers’ use of GPS tracking to monitor employees, and only a few states have enacted laws directly on this point (including California, Connecticut, Delaware, and Texas). However, GPS surveillance could possibly implicate certain state tort laws, including laws prohibiting the invasion of privacy. Unionized employees could also challenge GPS monitoring as an unfair labor practice or an infringement on the right to engage in protected concerted activity under the National Labor Relations Act.

Conclusion

In light of the pending Intermex case, employers with existing GPS related policies (and those considering implementing such policies) should take the following points into consideration:

• Ensure that GPS monitoring is justified by a legitimate business need. The Intermex case demonstrates the potential ramifications of implementing an employee GPS tracking program. Due to the substantial costs of litigation, employers should consider whether tracking employees is necessary for work-related purposes, e.g., a need to monitor employee productivity, the use of an employer’s resources (such as a company car), security and safety concerns, etc.
• Ensure that the GPS tracking policy sets forth monitoring parameters. Due to potential disputes regarding employees’ privacy expectations, an employer that uses GPS tracking software should implement a sound policy that outlines the purpose of the company’s use of GPS monitoring, the manner in which the employer will monitor its workers, and how the employer will use the data. The policy should also explain the logistics related to tracking employees, including when an employee should expect to be monitored and when employees may turn off an app’s tracking function. If disabling a device’s tracking function could result in discipline, notify the employees of this consequence in advance.
• Effectively communicate the policy. GPS tracking could convey a essage that an employer lacks trust in its employees, which could negatively affect employee morale. An employer should communicate honestly with its employees about its GPS monitoring program and welcome questions about how the employer will use it. This could help build rapport with employees to enlist collaboration as opposed to resistance. To alleviate potential privacy concerns, employers may consider certain timecard apps that automatically disable the GPS function when the employee is off the clock.

To avoid legal ramifications that could result from tracking employee activity using GPS software (or any form of electronic monitoring), employers are encouraged to consult legal counsel to ensure that your monitoring policies do not run afoul of applicable laws.

Courtney King is an associate in Ice Miller’s Labor and Employment Group and Data Security and Privacy Group. Resident in the firm’s Indianapolis office, the author may be reached at courtney.king@ icemiller.com.

Article Courtesy of Pratt’s Privacy & Cybersecurity Law Report, Volume 1, Issue 3.

Copyright © 2016. Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Materials reproduced from Pratt’s Privacy & Cybersecurity Law Report with permission of Matthew Bender & Company, Inc. No part of this document may be copied, photocopied, reproduced, translated or reduced to any electronic medium or machine readable form, in whole or in part, without prior written consent of Matthew Bender & Company, Inc.

LEXIS PRACTICE ADVISOR RESEARCH PATH: Labor & Employment > Privacy, Technology, and Social Media > Monitoring and Testing Employees > Articles > Video and Audio Surveillance and Eavesdropping of Employees