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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.
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.
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.
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:
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.