By Alan Jampol, Esq. of Jampol Zimet LLP
Advances in technology have altered the workplace and created an environment in which it can be difficult for employers to ensure that employees are doing what they are supposed to be doing. From utilizing workplace computers and programs for personal use to browsing the web or “Facebooking” during working hours, employers are constantly looking for ways to curtail improper usage and keep employees focused on their job. Technology has also provided methods to employers for monitoring and tracking their employees’ computer usage. However, such methods are not without their risks to the employer and might constitute an invasion of privacy.
The issue has been raised recently by California employee Myrna Arias, a sales executive and account manager at Intermex, which is located in Bakersfield. Ms. Arias sued Intermex claiming an invasion of privacy, unfair business practices, and retaliation after she was fired for removing a tracking application that was downloaded onto her phone. According to Arias, the tracking application, called “Xora”, was inappropriate because it could track her during nonworking hours. Intermex requested all employees download the application, which permitted GPS monitoring of its employees’ locations, onto their personal phones. Arias’ job included driving to businesses to sell Intermex’s money transfer services. Arias alleges that Intermex stated that it would monitor employees’ off-duty movements, and could even tell how fast they were driving their cars. According to Intermex, the tracking application was utilized to track its devices, and not specifically the employees.
While Arias did not oppose the tracking during working hours, she claims off-duty tracking of her GPS locations constituted an invasion of privacy. When she raised the issue with her employer, her concerns were dismissed. She claims she was chastised when she uninstalled the application and later terminated despite good job performance.
While courts have generally found that GPS tracking is reasonable and not an invasion of privacy when it occurs at the workplace or during workplace hours, the issue of whether such monitoring that extends to off-duty hours is reasonable has not been addressed. To further complicate the issue is the fact that the workplace is no longer just the workplace, as employees increasingly are taking their work home with them and expected to be available 24/7. Employers frequently provide employees with take home devices to permit work from home. Thus, whether GPS tracking of these devices or employees, even during non-working hours, is an issue that has yet to be decided.
Electronic monitoring carries with it a risk for invasion of privacy claims, as well as other wrongful termination claims. Where an employer gathers information about an employee, the door is open for employee claims that an employer’s termination was based upon information gathered rather than a legitimate business purpose. Furthermore, unionized employees can challenge the monitoring as an unfair labor practice and an infringement on the right to engage in protected concerted activity as set forth by the National Labor Relations Act.
While we await a decision on this issue, there are a few things employers who would like to electronically monitor their employees can do to minimize their risk. Employers should ensure its company policy clearly outlines what form of electronic monitoring it utilizes and what information is collected. All employees should be required to consent to the monitoring in writing; new employees should be required to accept the monitoring as a condition of employment. Employers should also ensure there is a legitimate business purpose behind the monitoring that can justify the need to monitor employees.
If you are an employer and would like to review your electronic monitoring policies, or would like to explore how you can effectively and lawfully monitor your employees, please contact please contact Marc Zimet or Alan Jampol of Jampol Zimet LLP at (213) 689-8500 or at firstname.lastname@example.org or email@example.com.