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Monitoring workers via GPS

Rich MeneghelloA California woman sued claiming she was fired illegally after she objected to her employer forcing her to install a GPS tracking application on her phone that monitored her movements 24 hours a day, 7 days a week. This lawsuit contains warnings that may help employers stay out of legal hot water.

Myrna Arias’ lawsuit is fairly straightforward. She claims that she began working for Intermix Wire Transfer in Bakersfield, California, in February 2014. She says she was lured away from her previous job by Intermix executives because they were familiar with her high quality work.

Arias was hired as a sales executive for the money-transfer company and reported to the regional vice president of sales. She says she was doing an excellent job at Intermix, meeting her sales quotas, earning good commissions, and receiving no discipline for work performance.

Within a few months of Arias’ start date, she claims that the company forced her and other employees to download an app called Xora StreetSmart onto their smartphones. The app is widely available on digital marketplaces; it costs employers only about $1 per day per employee, and it allows each employee to create electronic timecards on his or her phone and fill out other company business forms.

Xora and similar apps are convenient and popular with employees and employers. However, the app also has a GPS feature that allows employers to monitor and store information about user locations. Such features have also grown in popularity in the last several years, especially in the delivery and sales fields, allowing employers to monitor business activities, track progress and increase efficiency.

Normally this wouldn’t be a problem. Arias claimed she informed her bosses that she had no issue with them tracking her during working hours. However, she says she objected to the fact that her phone had to be on 24 hours a day, 7 days a week, allowing her employer to monitor and track her off-duty activities.

Arias says she “likened the app to a prisoner’s ankle bracelet” and even told her boss that it was illegal. She uninstalled the app in late April 2014. As a result, she alleges that her supervisor “scolded” her and, within a few weeks, fired her. In May, she filed a lawsuit seeking at least $500,000 in damages, claiming an invasion of privacy, illegal retaliation, violation of California state law (which prohibits GPS tracking), and other allegations.

As I write this, Intermix has not yet answered the complaint. We don’t yet have the employer’s version of events.

But if a company is considering tracking employee movements via GPS (or even installing software or apps that allow for GPS monitoring), be aware of state law. Arias is right – California law prohibits such tracking in certain circumstances, and a few other states require employers to notify employees in advance if they are being tracked. That said, the general rule is that tracking employees via GPS is legal, as long as it is done for a legitimate reason and with a reasonable scope.

A few years ago, an employer in Missouri installed GPS devices in company vehicles to try to catch a suspected theft; after an employee caught wind of the tracking device, he brought a similar invasion of privacy suit. The court rejected the lawsuit, ruling that the company had the right to track its own vehicles, and that the information it was gathering – the location of the car – was “highly public” anyway and not private enough to warrant an invasion of privacy claim.

In a similar claim, a school worker in New York was issued a company cellphone with GPS tracking installed to track the employee’s time at work. The data showed that the worker was continually leaving work early and falsifying his time cards, and he filed a grievance after he was terminated. The judge ruled that the employer had a legitimate reason to track his on-duty movements and that he was aware of the monitoring, upholding his termination.

In both of these cases, the employer limited its surveillance to on-duty time and drew the line at monitoring (or the ability to monitor) off-duty activities. Employers would be wise to heed such restrictions. Going past this line could easily lead to an invasion of privacy claim, even if the employee is aware of the tracking.

Further, and perhaps more importantly, if an employer tracks and stores the personal activity of its employees, it will find itself with a whole host of personal data it might not want to have. The employer might learn where an employee spends his off-hours, where she goes to church, what kind of medical clinic he visits, or whether she visits a union organizing office.

All of these actions may reveal information that could demonstrate that an employee is in some sort of protected class, and if an employer takes adverse action against them, they could claim that the motivation to do so was on account of its knowledge that they were in this protected class. A good way to defend a retaliation or discrimination lawsuit is showing a lack of knowledge that the employee was in such a protected class; however, such a defense is blown if this information is stored in the employer’s data bank.

As technology makes such tracking increasingly easier, this will certainly not be the last lawsuit filed making similar claims. Hopefully companies will not find themselves on the receiving end.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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