Many employers are keeping tabs on their employees in new and different ways. For instance, many employees who drive as part of their work duties have their work-time movements tracked via GPS (global positioning system) devices on their company vehicles. This can feel like an invasion of privacy, especially to an employee who is taking an approved lunch break.
This issue has also become more complex as developments in technology continue to expand the ways in which employers can track their employees. Xora is a smart phone app which tracks the whereabouts of the smart phone at all times. Now it’s not just employees who drive company cars and trucks who can be easily tracked. Employees who have company smart phones now need to think about whether their phone is telling their employer where they are, even in their off-hours.
In California, Myrna Arias is suing Intermex Wire Transfer, LLC, her former employer, alleging that she was fired because she objected to Xora being on her phone and deleted the app. According to Arias’s complaint, after Arias had been at Intermex for a few months, the company directed her and other employees to download Xora onto their phones. Arias researched the app and she and other employees asked a Xora trainer whether the app would be monitoring their movements while they were off duty. Arias’s supervisor informed her that Intermex would be monitoring employees’ movements while they were off duty, and then bragged that, from the day Arias had installed Xora, he knew how fast she had been driving at specific moments.
Arias objected to Intermex monitoring her movements outside of work hours. She told her supervisor that this was an invasion of her privacy, and that it was like a prisoner having to wear an ankle bracelet. Her supervisor justified the intrusion by saying that she was getting paid more at Intermex than at her previous employer, and also told her that she had to keep her phone powered on at all times, so that she could answer client calls.
Arias removed the app from her phone, and was fired a couple of weeks later. In her complaint, she alleges that her supervisor intruded on her privacy by intentionally tracking her location while she was off duty. She also alleges that her employer wrongfully terminated her in violation of public policy, by firing her because she objected to the GPS tracking and refused to participate in it. It will be interesting to see which of these allegations holds more sway with the court.
Courts across the country are considering issues related to employee privacy, and many of the issues are undecided. Some courts are relying on concepts from criminal law, such as the reasonableness of the scope of a search. For instance, in 2013, the New York State Court of Appeals held that the state had acted outside the law by placing a GPS tracking device on an employee’s car, and tracking his movements 24/7 for at least a month, because the employer (the New York Department of Labor) had not made a reasonable effort to limit its search to the employee’s work hours. Matter of Cunningham v. New York State Dept. of Labor, 21 N.Y.3d 515 (N.Y. 2013).
For now, employees should beware that their employers may be tracking the location of all company-owned devices, even if the employer has not notified the employee or asked for consent.
By Jennifer Vorih, Esq. and Ty Hyderally, Esq.