Friday, May 15, 2015

Tracking Trouble

Over the past few months, we’ve been cautioning employers about the use of surveillance to monitor employee behavior.  We’ve discussed video and other monitoring technology.  Earlier this month, and thanks to a report from ArsTechnica, one employer’s story has become a cautionary tale.
Intermex, an international money transfer company, required field technicians, service technicians, and other employees to install a tracking app (known as Xora) on their phones . The app was used to monitor the employees in the field, and it can do some amazing things.  Integrated with Google Maps, it allows an employer to see where field employees are, schedule service calls based on employee location, receive up-to-the-minute notifications on work status, and generate invoices.  One employee, Myrna Arias, was concerned that the app could track her movements during non-work hours.  While talking to a Xora trainer, she asked about that, and her supervisor, John Stubits, apparently responded.  From Arias’ Complaint, recently filed in California state court:
Stubits admitted that employees would be monitored while off duty and bragged that he know how fast she was driving at specific moments ever since she had installed the app on her phone.
When Arias removed the app from her smartphone, she was fired. She sued Intermex for invasion of privacy, intrusion into private affairs, and retaliation, among other things.
  • Bring Your Own Device (BYOD).  Bragging about the ability track to an employee’s off-duty movements, whether or not a manager actually has that ability, is not exactly an example of good management judgment. That aside, there are multiple issues associated with an employer’s use of a location tracking app, and all should be considered before such technology is adopted. The app was installed on Arias’ smartphone.  Under California law, Intermex is required to pay for any services it requires employees to use, such as their personal smartphone service.  In addition, of course, there are multiple data security issues involved with BYOD.
  • Employee Privacy.  Arias’ first claim is that Intermex invaded her privacy and intruded into her private affairs by tracking her off duty.  As we’ve noted before, a few states have statutes that limit an employer’s ability to monitor employees off duty.  Here, Arias’ claim is for common law invasion of privacy, which is a right recognized by California, but not by every state, in the employment context.  It’s also worth noting (although not involved in this case) that the National Labor Relations Act prohibits monitoring off duty employee conduct, especially if the employees are engaged in concerted protected activity.
  • Employee Consent?  A question Intermex is likely to raise in defending this lawsuit is whether Arias knew that that the Xora app could track her off-duty movements and agreed to let that happen when she accepted the  terms of Xora’s privacy policy as she downloaded the app to her smartphone.  Intermex may argue that acceptance of Xora’s terms of use precludes an employee’s privacy claim.  But is acceptance of the terms of use of a required app real consent?  And did Arias understand what she was agreeing to? As the case progresses, it will be interesting to see if such questions are addressed.  
We think this lawsuit is fascinating for employers and employees alike.  Arias and Intermex have collided in the middle of the intersection of employment law and technology.  Wherever the case goes from here, we’ll be watching and we’ll keep you posted.

Posted by: Judy Langevin and Kate Bischoff
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