A California business is facing allegations of invasion of privacy, wrongful termination, and other claims in a lawsuit brought by a former employee. Arias v. Intermex Wire Transfer, LLC, et al., No. _____, complaint (Cal. Super. Ct., Bakersfield Co., May 5, 2015). The plaintiff alleges that the company fired her after she deleted an app from her phone that allowed her supervisor to track her movements at all hours. Employers clearly have an interest in keeping tabs on their employees in some circumstances. How far may an employer go, though? The case raises important questions about the extent to which employers may use modern technology to monitor their employees, and what rights employees have if an employer exceeds that authority.The law is not clear on this specific issue, i.e. the use of a GPS-enabled smartphone to track an employee after hours, so the case could have a significant impact.
The defendant offers wire transfer services to consumers who want to send money to various countries in Latin America. According to the plaintiff’s complaint, the defendant hired the plaintiff as a sales executive in February 2014. Part of her job reportedly involved being available to answer phone calls from clients around the clock. Her supervisor allegedly told her that she needed to keep her phone powered on at all times. She states that the defendant instructed all of its employees to download an app called Xora to their phones in April 2014. This app uses the phone’s GPS functionality to “track the exact location of the person possessing the smart phones [sic] on which it was installed.” Arias, complaint at 3.
The plaintiff claims that her supervisor confirmed to her that the defendant would be using Xora to track employees even after work hours and on the weekend. She states that she did not object to the defendant tracking her and other employees during work hours, but that any further monitoring “was an invasion of privacy.” Id. The supervisor allegedly disregarded her concerns, and on May 5, 2014, she states that she was fired.
Monitoring of employees by employers is a relatively unexplored area of the law, especially with regard to new technologies like GPS-enabled smartphones. Courts have issued some rulings regarding GPS monitoring by public employers. New York’s highest court, for example, ruled that a public employer could place a GPS tracking device on an employee’s car without obtaining a warrant. Cunningham v. N.Y. Dept. of Labor, 21 N.Y.3d 515 (2013). That case involved an investigation targeting a specific employee, who was suspected of falsifying time records. The current case involves a private employer and general monitoring of all employees.
The plaintiff is claiming invasion of privacy and intrusion into private affairs, wrongful termination, and violations of Cal. Labor Code § 1102.5, which prohibits employers from retaliating against employees who “refus[e] to participate in any activity that would result in a violation of state or federal statute…or regulation.” She is bringing a claim under California’s Private Attorney General Act, Cal. Labor Code § 2698 et seq., which allows an employee to bring a civil suit for violations of state labor laws. She also alleges unfair business practices in violation of her rights. Cal. Bus. & Prof. Code § 17200.
Civil litigation attorney James G. Schwartz has represented businesses and business owners in the Bay Area in a wide variety of litigation and transactional matters for over 38 years. To schedule an initial confidential consultation with a knowledgeable and experienced advocate, contact us today online or at (925) 463-1073.
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