My latest nomination for the Weasels Awards is Intermex Wire Transfer, Inc., a company that provides wire transfers of money to Latin America. Intermex required its employees to install a GPS tracking app on their personal phones, then used it to spy on them while they were off-duty.

When the CEO bragged about being able to know where an employee was and how fast she was driving during her free time, the employee complained and then removed the app from her phone. The company then fired her.

Now there’s a lawsuit that alleges privacy violations, unfair business practices, retaliation for exercising her legal rights, and wrongful termination. Here is the Complaint.

And the employer will most likely lose under California law.

What Was the App?

The app was Xora, now Clicksoftware. The company makes software to help with scheduling, route efficiency, and communications between mobile employees. One of the features is “Track and Trace,” which integrates with Google Maps, and allows the employer to see where employees are, how long they spend there, where they went next, and how long it took them to get there.

StreetSmart Track and Trace integrates with Google Maps into our system providing you with map views PLUS street level and satellite views. You also get the ability to drill down into the map and see specifically what is happening at each stop. How long an employee’s been there, the address, what actions they are taking – for example, has the worker clocked out for a break. Whatever way you are viewing your operations, StreetSmart Track and Trace gives you the full context you need to understand what’s going on in the field in real-time.

Why Tracking Employees Off-Duty is Illegal Under California Law

People who live and work in California have a Constitutional right to privacy. California law also protects employees against discipline or termination for their off-duty conduct. This law is based on the idea that when employees are not at work, they should have freedom from the employer. Privacy is fundamentally a right to be left alone.

So tracking an employee’s movements, location, speed, and collecting other data about what employees do when they are not working is an invasion of their privacy.

What About Other States?

Ten states have constitutional rights of privacy. Here’s the list, along with the text of the privacy right. Other states have specific privacy laws that apply to off-duty conduct.

Also, federal government employees are generally protected against monitoring of off-duty conduct under privacy rights.

What to Do:

Employers

If you are the employer, be mindful of employee privacy, especially when the information you are collecting relates to off-duty conduct.

When buying software, understand what device is used. If it is the employer’s device/hardware, then the employer is usually free to control it, and to collect and use any information or data relating to that device.

However, if a company is requiring employees to install an app on their personal phones, then the employer should not be entitled to any information about the employee’s off-duty conduct. See Employee Privacy: What Employers Can Monitor.

Either way, find out if the app can be turned off and teach employees how to do it.

If the app can’t be turned off and the company is stuck with the software, at least for now, then make sure that your employees know what the app does, what data gets collected, whether you are storing it, and how it may be used. Put it in writing and get employees to acknowledge that they received the notice.

And while you are at it, think carefully about how this is going to go over and whether this is the environment you want to foster. A surveillance culture sucks. Nobody wants to work like that.

Employees

If you are an employee, understand what the apps on your phone do, what data gets transmitted, who gets it, and what they do with it. Your employer might also be surprised, so don’t assume that they are evil and spying on you.

Let HR know about your concerns and ask them to look into alternatives. If the answer is pound sand (or some politer version), then find out if you can remove the app from your phone when you are not at work. It may be as easy as deleting and reinstalling Facebook on your phone (which I seem to do a lot as I figure out how much time I actually want to spend staring at a phone screen.)

If it’s really creepy and you just can’t deal with it, then start looking for another job. And maybe an attorney.

It is important to treat people as humans who have their own lives outside of work, and to respect work/non-work boundaries. Privacy matters.

Related Links:

Employee Privacy – What Can Employers Monitor?

Employee Privacy 2 – When It’s Personal

Employee Privacy 3 –Social Media