A California sales executive filed a lawsuit on May 5, 2015, challenging her termination from employment after she disabled a GPS tracking device on her employer-provided iPhone, shining a spotlight on the reasonable expectation of privacy of employees and employers’ increasing use of monitoring devices.  Myrna Arias, a former sales executive for Intermex Wire Service, filed a lawsuit in Kern County Circuit Court, a state court in central California, alleging that her boss, John Stubits, fired her a few weeks after she uninstalled the job-management Xora app StreetSmart, a GPS tracker, which Intermex required she and her sales colleagues use.  Intermex is a wire transfer service for customers sending money to Latin America.  Employees were required to keep their company-issued smart phones powered on 24 hours a day. Ms. Arias did not object to the tracking device during work hours.

Ms. Arias and several co-workers asked whether Intermex would track their activities while off work.  Mr. Stubits allegedly admitted that they would and justified the 24/7 requirement as necessary so the employees could answer customer questions.  The suit asks for $500,000 for lost wages and damages for invasion of privacy, wrongful termination and retaliation, alleging that the intrusion would be highly offensive to a reasonable person.  An Intermex executive also allegedly interfered with Ms. Arias’ subsequent employment.

StreetSmart is a workplace management app that gives an employer the opportunity to monitor employees who are out of the office by seeing a mobile employee’s route, stops and the length of time spent at each stop, on a Google map.

WI Law Protects Workers from Unreasonable Invasions of Privacy

Wisconsin law protects employees from unreasonable invasions of privacy by prohibiting unreasonable invasions of privacy, which generally means the intrusion upon the privacy of another of “a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.”  Section 995.50, Wis. Stats.  In addition to the state law protections of privacy, there are a variety of federal statutes which may apply, including the protections of the National Labor Relations Act, and the privacy statutes that frequently are included in various federal statutes, including those which protect against an employer monitoring an employee’s off-the-job political and/or religious activities.

Case Law Blank on Certain Privacy-Technology Developments

State and federal legislation concerning privacy laws has not kept pace with the rapid development of tracking software and devices.  Case law concerning the reasonable expectation of privacy is changing at a rapid pace, with recent federal court decision in recent weeks concerning NSA surveillance and the police use of cell phone call information without a warrant. The limited case law on this topic generally focuses on whether or not the employer had a legitimate business justification for the tracking that outweighs the employee’s expectation of privacy.

U.S. v. Jones Speaks to GPS Monitoring and Privacy Concerns

Though it did not involve an employee, the 2012 U.S. Supreme Court case U. S. v. Jones may have shed some important light on this subject when it struck down Jones’ conviction for drug trafficking after law enforcement officials installed a GPS tracking device on his personal vehicle without a warrant. Prosecutors used the information collected by the tracking device to convict him, but the court ruled the use of GPS to monitor all of a private citizen’s movements for a lengthy period of time was a violation of his rights under the Fourth Amendment.

If you have a concern about your employer’s requirements concerning tracking devices or programs during your non-work time, please contact one of the employment lawyers at Hawks Quindel.  A subsequent blog by Hawks Quindel wage and hour attorneys will address the potential wage implications of these GPS tracking devices.

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Katherine Charlton