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Lawsuit Raises Novel Question About Off-Site Employee Surveillance

As new technologies aim to help employers operate at maximum efficiency and profitability, employees are often a secondary concern. That dynamic is highlighted by Myrna Arias’ recently filed lawsuit, which raises a novel question regarding the legality of employer surveillance of off-site employees using smartphones.

Arias worked in California as a sales executive for the money transfer service Intermex. Her complaint alleges that the company asked employees to download an application called Xora to their company-provided smartphones. The application features a GPS location service, which Xora says will “give you a map of where your employees have been, where they are and where they’re going next, as well as how long they’ve spent at each stop throughout the [day].”

Arias claims that Intermex said it would would track and monitor employees while they were off duty. According to her complaint, Arias’ boss “admitted that employees would be monitored while off duty and bragged that he knew how fast she was driving at specific moments ever since she installed the app on her phone.” That revelation led Arias to delete the application “in order to protect her privacy.” Intermex fired her soon after.

Employers tracking employees is nothing new. As the Wall Street Journal notes, “monitoring for hourly and wage workers has long been limited to video cameras in the break room and GPS on delivery trucks.” However, the scale and ease of such surveillance has grown with rapidly, thanks in part to modern smartphones.

The central issue in Arias’ lawsuit — whether an employer can monitor employees off the job and off site — is surprisingly novel. “Courts have traditionally found a low expectation of privacy regarding workplace monitoring,” notes a National Workrights Institute report. As Jackson Lewis’ Lillian Chaves Moon observes, despite the infrequency of GPS tracking in an employment context, “most [courts] have held that employers may use tracking devices on company-owned equipment, where the employee does not have a reasonable expectation of privacy in its use.” However, Arias’ privacy rights might be completely different while off duty.

Courts looking to federal or state policies regarding employer tracking of employees via GPS will find a sparse legislative record: no federal statute governs such tracking — or forces employers to disclose such activity — and few states have addressed the issue. Some states, like California and Connecticut do have relevant laws on the books. Connecticut’s state legislature prohibits an employer from electronically monitoring an employee without prior notice to all affected employees and California’s penal code forbids the use of electronic tracking devices to determine an individual’s location without their consent.

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