Employee Supervision Off The Clock: The Use of Mobile Apps with GPS Functioning to Monitor Employee’s Whereabouts On and Off The Clock

May 18, 2015

The advancement of global positioning system (GPS) technology has made tracking individuals’ locations increasingly easier.  Many mobile applications (“apps”), such as Find My iPhone, GPS Location Tracker, and Find My Friends, allow parties to keep track of other individual’s locations.  These applications can be very helpful in aiding individuals to find their lost phones or in aiding parents to keep track of their minor children’s whereabouts.  However, when abused and used for inappropriate purposes, these applications can be a severe invasion of privacy.
GPS monitoring has been a topic of debate in a number of legal areas, including in the area of employment.  A few courts have been faced with determining whether or not employers can use GPS monitoring to track their employees.  Intermex, a company that offers money transfer services between the United States and Latin America, is one such company that tracks its employees through mobile apps with GPS functioning.  The company requires its employees to download and use Xora, a mobile application where employees can clock in and out and manage paperwork.  However, this application also allows managers to track their employees’ location through GPS, even when their employees are off the clock.
Myrna Arias, an employee in a California office of Intermex, discovered that her manager was monitoring her whereabouts even when she was not working and deleted the application.  Her employment was terminated weeks later.  She filed suit against the company, alleging wrongful termination and an invasion of her privacy by the company.
A few courts, though not the Supreme Court, have weighed in on the legality of employers tracking their employees’ locations through GPS.  The landmark Supreme Court case remarking on the constitutionality of GPS tracking by state actors is United States v. Jones.  In Jones, the United States Supreme Court held that when police place a GPS tracking device on an individual’s car, this constitutes a Fourth Amendment search, and is unconstitutional without a valid search warrant or other exigent circumstance.  However, the Jones ruling may not directly apply in the context of employers tracking employees if the employers are private companies.  Rather, the Jones ruling only applies in the context of state actors.
While the Supreme Court has not yet addressed the constitutionality of an employer using GPS tracking to monitor its employee’s whereabouts, a few lower courts have been faced with this issue.  In Cunningham v. New York State Department of Labor, decided in 2013 shortly after Jones, the New York Court of Appeals ruled that “[w]here an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable.”  In this case, a high-level employee at the New York State Department of Labor was suspected of falsifying records of the number of hours he had worked.  The Department of Labor attached a GPS to the employee’s car to determine whether or not he had been falsifying the number of hours he claimed to have worked.  The GPS monitoring showed that the employee’s arrival and departure times from his office did not match the hours he claimed to have been working.  However, the GPS monitoring did not stop at monitoring his work hours; the GPS tracking continued to monitor the employee’s movements on nights, weekends, and during his vacations.  The New York Court of Appeals found this continuous monitoring to be unreasonable.  While Cunningham offers more insight into how courts may view employers using GPS to monitor their employees’ movements, Cunningham involved a State Department of Labor tracing the location of a state employee.  Other courts may find that they want to differ from this ruling in cases involving private companies, such as Intermex.
In cases involving private companies tracking their employees’ movements, it may be easier to lay down legislation that clearly defines the scope of if and when employers may track their employees’ location.  For instance, Tennessee’s criminal statute provides that “it is an offense for a person to knowingly install, conceal or otherwise place an electronic tracking device in or on a motor vehicle without the consent of all owners of the vehicle for the purpose of monitoring or following an occupant or occupants of the vehicle.”  States that want to protect employers from tracking their employees could pass similar legislation that expands the criminal offense to include anyone who knowingly uses any device or application that tracks an individual’s movements without the target’s consent.
Employers could also better protect themselves from future litigation by informing their employees that installing an application that monitors the employee’s movements is a requirement of the job.  Employers could explain how and when the employee’s movements will be monitored and give their potential employees the option of not accepting the position if he or she feels uncomfortable with installing the app.  Through this method, employees will not be monitored without consent.  Additionally, employers may be incentivized to limit the scope of their monitoring in order to avoid potential employees from declining any job offers by the company.
As GPS technology advances, it will become increasingly easier for individuals to track third parties.  This technology could be easily subject to abuse.

Without proper state intervention, employees of private companies, such as Myrna Arias, could continue to suffer severe invasions of privacy.