In August 2014, the blog Law360 asked in a headline, “Monitoring Employees: How Far Can Employers Go?” The answer was: depends on the locale, but the law is pretty undeveloped.
Last week, Myrna Arias of Bakersfield asked the Kern County Superior Court for something more definitive when she sued her employer (pdf), claiming she was fired two weeks after turning off a company-required GPS app that tracked her movements during off-hours. Arias likened the app to a parolee's ankle bracelet, called it illegal and asked for $500,000 compensation.
According to the lawsuit, Arias was recruited by the money-transfer company Intermex in February 2014 while working as a sales executive for a competitor, NetSpend. Arias, who says she has health issues, took the higher-paying job with the proviso that she could continue to work for NetSpend during the three-month probation period to keep her health care continuous.
In April, Intermex informed employees that they would be required to download Xora StreetSmart, GPS tracking software, to their personal smartphones and made it clear the tracking would continue in off hours. Xora Inc. is now known as ClickSoftware Solution and isn't a party to the lawsuit.
Arias de-installed the app and was fired. She claims in her lawsuit that Intermex then called NetSpend, with whom she still had a contract, and told them she had been “disloyal.” NetSpend terminated her, too.
A study in 2012 said that 62% of companies with “field” employees use tracking software and more than 53% of all employers are said to be using the technology. The software can be installed in a company vehicle or on any devices, including computers and smartphones. And like any good GPS app, according to the Xora website, “You can drill down on an individual worker to see where they have been, the route they have driven and where they are now.”
Arias claims that is an invasion of privacy and violates state law. California Penal Code Section 637.7 forbids the use of electronic tracking devices to determine the location of other individuals unless its wielded by law enforcement or consent is given.
GPS tracking is just a small part of the surveillance employers use to keep tabs on workers. At least 20 companies offer software tools for tracking employees and analyzing their behavior, according to Bloomberg. That can include keystroke, e-mail and phone monitoring. A program can create logs based on accumulated data, apply sophisticated algorithms and generate employee profiles that characterize behavior and predict future actions.
Jay Stanley at the American Civil Liberties Union told the Washington Post, “Employers have legitimate reasons for monitoring their workers, but all too often we see that kind of tracking spilling over into the private parts of their lives.” That poses a problem, he said:
“When you know everywhere someone's been, you know a lot about their lives—you know not only where they work and live, but who their friends are, who their lovers are, what doctors they might visit and their specialties, what sexually-oriented establishments they might visit—the list just goes on and on.”