By Jay Dade
The MTV Generation is well-familiar with the hooks of Rockwell’s 1984 hit, “Somebody’s Watching Me:”
I'm just an average man, with an average life.
I work from nine to five; hey hell, I pay the price.
All I want is to be left alone in my average home;
But why do I always feel like I'm in the Twilight Zone, and
I always feel like somebody's watching me.
And I have no privacy.
Whoa, I always feel like somebody's watching me.
Tell me is it just a dream?
Flash forward to 2015 – and the advent of Global Positioning System (GPS) devices – and Rockwell’s lyrics strike an eerie, though paranoid, prophecy for the 21st Century Workplace.
Today’s GPS technology, imbedded in employer-issued property such as smart or mobile phones, navigation systems or GPS devices installed on company cars, allows employers to monitor employees’ movements and locations in real-time almost anywhere. However, simply because GPS technology exists for employers to track employees, wary employers should balance their use of such technology with employees’ privacy rights. With the current paucity of pertinent case law, employers tracking employees through GPS devices may be vulnerable to litigation.
Recently, a California-based employee, Myrna Arias, filed suit against her former employer, Intermex Wire Transfer, LLC, in California state court alleging Intermex fired her after she removed a job management app from her phone that tracked her GPS location while she was off duty. In her complaint, Arias alleges that her supervisor bragged that he knew how fast she was driving because of the app. Within weeks of Arias complaining about what she believed to be an intrusion onto her privacy, Intermex terminated her. Arias alleges Intermex violated her right to privacy and California labor laws, committed unfair business practices and wrongfully terminated her against public policy.
At least 28 states and the District of Columbia have enacted statutes protecting employees from discrimination or retaliation based on the employee’s participation in lawful recreational or leisure activities during personal, off-duty time. For unionized employers, GPS monitoring might be challenged as an unfair labor practice under the National Labor Relations Act.
Balancing business-related reasons for tracking employees with those employees’ privacy rights (which may be statutorily protected) should prove food for thought for the wary employer. Prior to implementing a GPS monitoring program on company-issued devices or company cars, an employer should consider:
- Is surveillance of employees via GPS devices business-related and truly necessary?
- What effect, if any, may GPS surveillance have on employee morale?
- How should implementation of a GPS surveillance program be communicated to employees?
- How should expectations of the proper use of GPS surveillance be communicated to management?
- What details of a surveillance program should be included in a GPS monitoring policy?
In the end, employers should review their privacy policies regarding employee privacy issues and seek answers to such questions before implementing GPS surveillance of on- and off-duty conduct. Rockwell’s 1984 reflections on paranoia perhaps ring more true today.