The distinction between work and leisure time has become increasing hard to identify. As other authors on the blog have demonstrated, technology plays a huge role in collapsing this distinction. Perhaps more disturbing than always being on call is the idea that employers can track employee’s physical whereabouts using GPS tracking. Employers have, with relatively little controversy, frequently placed GPS trackers on employee vehicles. But as electronic devices become more central to employee’s day to day work, employers have taken to tracking these devices as well. Courts have yet to consider GPS tracking of electronic devices, but challenges to these practices are beginning to come before courts.

Arias v. Intermex Wire Transfer is one of the first challenges to GPS tracking of employee smartphones. Intermex required all employees install an app, Xora, which contained a GPS function that allowed the company to track employee’s whereabouts. The plaintiff asked her supervisor whether employee actions off the job would also be tracked. The supervisor told her off duty whereabouts would be tracked, and confirmed that the plaintiff was expected to keep her phone on 24/7 to answer any calls from clients. The plaintiff told her supervisor she was fine with the tracking while she was on duty, but expressed discomfort with being tracked when she was off duty and during the weekends. Plaintiff claims that many other co-workers agreed with her. Ultimately, the plaintiff decided to uninstall the app, and was reprimanded for doing so. A few weeks after uninstalling the app, the plaintiff was fired. Arias sued Intermex for invasion of privacy, violations of the California Constitution and California Labor Code, wrongful violation, and unfair business practices, among other things. The case ultimately settled out of court.

Courts will undoubtedly be hearing more cases like Intermex. Unfortunately, state and federal laws are unlikely to provide much guidance. Consequently, courts will likely have to look to other analogous employer tracking contexts, like cars, to determine how they should address electronic device tracking.

The Legal Landscape of GPS Tracking: Federal and State Privacy Laws

While federal privacy laws exist, they offer relatively little protection to employees.  The last comprehensive internet privacy legislation was the Electronic Communications Privacy Act. Originally passed in 1968, the Act was amended to extend its protections to a broader array of digital and electronic communications. The bill provided some minimal protections for employees. It extended the provisions of the Omnibus Crime Control and Safe Streets Act of 1968 to include cell phone and electronic communications. The Act prohibits employers from listening to private employee communications or reading private electronic communications. Employers can still listen to conversations and read employee emails for work-related inquiries, but must stop when communications become personal. It is important to note that these protections only apply to personal electronic devices and email accounts.

A number of states have statutes that protect employee privacy, but these statutes vary widely in the degree of protection afforded to employees. Approximately 29 states and the District of Columbia have laws that generally prohibit firing employees on the basis of off-duty conduct.  California is currently the only state that has a law specifically prohibiting employees from tracking employee’s personal vehicles. On the whole, the vast majority of state statutes do not address employer tracking of electronic devices. As a result, in most states, plaintiffs must rely on invasion of privacy torts if they want to challenge employer tracking.

GPS Tracking of Cars: A Case Study

Courts have contemplated the legal parameters of employer tracking in the context of cars and two seminal cases established a high bar for proving an invasion of privacy. In Elgin v. Coca-Cola Co, the employer, in the course of investigating a cash shortage problem, attached a GPS tracking device to a company-owned vehicle used by a particular employee. The employee was allowed to drive the vehicle during work and off- hours.  The company did not tell the plaintiff that a GPS device was placed on the vehicle until the investigation had concluded. The employee brought an invasion of privacy claim under Missouri state law. The court dismissed the claim. To succeed in an invasion of privacy suit, a plaintiff must demonstrate that 1) there was a secret and private subject matter; 2) there was a right to keep the subject matter private; and 3) the defendant obtained information about the subject matter through unreasonable means. Weighing all of the factors, the court held that the intrusion upon the plaintiff’s privacy was not substantial enough to be “highly offensive to a reasonable person.” The court determined that type of information may be attained by the GPS tracker was limited to the whereabouts of the company vehicle. Citing Supreme Court precedent, the court asserted that a vehicle’s path of travel is not the type of secret and private information that would give rise to an invasion of privacy challenge, as there was no reasonable exception of privacy. Since a vehicle’s location is always public, tracking of a vehicle was not an invasion of privacy. The court also determined that because the vehicle belonged to the employer, the gathering of this information is even less likely to be highly offensive to a reasonable person, since the car’s owner (the company) has consented to tracking.

More recently, Cunningham v. New York Department of Labor concerned a tracking device placed on an employee’s car in light of the employer’s concern that the employee was submitting false time reports. The court addressed the questions of whether the GPS tracking constituted a search that was exempted from the warrant requirement as a workplace exception, and whether or not that exception applies to the search of an employee’s personal vehicle.  The court determined that the exception still applied to searches of vehicles that are being used when the employee is working for the employer, even if the employee owns the vehicle. Relying on Ortega v. O’Connor, the court also held that the location of a vehicle used in the course of employment is not entitled to a higher degree of privacy than personal effects on a desk.  However, the court found that the search was unreasonable in its scope, because it “examined activity with which the State had no legitimate purpose. . .” The court pointed out that the employer continued to track the employee during vacations, over the weekend, and all evenings during the week. The court acknowledged that it is likely impractical to expect a company to eliminate all surveillance of private employee activity, but believed the company could have reasonably conducted its tracking in a less invasive manner.

What Can We Learn from Car Cases?

Although these two cases do not allow us to predict how courts will adjudicate privacy claims brought in the context of electronic device monitoring, they do establish some possible parameters.  One, both cases find relevant the public nature of the information or activity the employer seeks to track.  And both find relevant whether the company owns the device being tracked. Cunningham, moreover, implies that the line between on-work and off-work time is relevant to the privacy inquiry: employers have a legitimate interest in tracking employees when they are on duty, but less of a legitimate interest when they are off duty.  Of course, it is more difficult to ensure that employers do not track off duty employees if employers are tracking devices. Electronic devices, specifically cell phones, are likely to be found with the employee more frequently than a vehicle is, making the task of distinguishing between on and off time more difficult. Furthermore, as the facts of Intermex highlight, the use of electronic devices in the course of work usually imply a work relationship where the employee’s off duty and on duty hours are less clearly defined. Like Arias, employees who are expected to be constantly accessible may have a harder time articulating when they’re off duty versus when they’re on the clock.  Given these differences and the concerns that animate the car cases, courts may be more amenable to privacy claims brought in the context of electronic device tracking.