Refusing to allow her employer to track her movements when off the clock allegedly got Myrna Arias, an employee at a California money transferring firm, fired after she uninstalled a GPS enabled tracking app her employer required her to keep on at all times.
One concern over such monitoring is that it may led to what the American Civil Liberties Union (ACLU) calls “Lifestyle Discrimination” by an employer.
“When employers monitor someone’s personal life, that allows them to gather up a lot of information about how they live their lives,” says Jay Stanley, senior policy analyst with the ACLU in New York in an interview. “Are they sexually active? Are they gay? Do they smoke?”
Ms. Arias didn’t want her employer to have that kind of access to her personal life. After being fired, she is now suing her former employer, Intermex, for allegedly violating her privacy, wrongful termination and other allegations. Intermex, based in Miami, Florida, did not return phone calls for comment.
The complaint, filed with a California court, states that Ms. Arias was required by her employer to keep her phone on at all times and was dismissed weeks after being "scolded" for uninstalling the Xora app workforce tracking application on her phone.
In the complaint, her superiors at Intermex claimed that the phone was to be kept on 24/7 in order to field calls from clients and not specifically for tracking purposes.
According to the Xora (soon to be known as ClickSoftware) website, the app is meant to assist employers with mobile employees who may require data, guidance or to file time cards, mileage, job assignments and other paperwork directly from their smartphones.
"[Arias' boss John] Stubits admitted that employees would be monitored while off duty, and bragged that he knew how fast she was driving at specific moments ever since she had installed the app on her phone," according to the complaint.
Alan Butler, senior counsel for the Electronic Privacy Information Center (EPIC) in Washington, D.C., says in an interview with the Monitor that while some employers may have legitimate reasons for monitoring and tracking an employee’s whereabouts, this is a case where the employer went too far.
“When an employer is tracking their employees’ movements completely unrelated to any work function, that is completely inappropriate,” Mr. Butler says. “The fact that these applications exist is no excuse for people to use them for harassment or other inappropriate ends. An employer is not justified in firing an employee simply because they don’t want to submit to 24/7 location monitoring."
Stanley, of the ACLU in New York, points out in an interview that invasive employee monitoring is really not new – it's just becoming easier and harder to avoid as technology advances.
“It began with [auto magnate] Henry Ford hiring detectives to spy on employees,” Mr. Stanley says.
According to the Jalopnik website, Ford wanted to insure that workers who had made promises to live in a way that conformed with Ford’s principles remained worthy of their conditional pay raises.
Richard Snow writes in his book, "I Invented the Modern Age: The Rise of Henry Ford," as quoted on Jalopnik, “To qualify for his doubled salary, the worker had to be thrifty and continent. He had to keep his home neat and his children healthy, and, if he were below the age of twenty-two, to be married.”
Butler adds that today’s Intermex case “highlights the fact that we don’t have any comprehensive legislation, certainly not on the federal level, in the United States dealing with location tracking issues.”
“There are increasingly more ways to track people’s locations and applications like this and they’re becoming more and more invasive and we haven’t addressed that,” he says.
However, Stanley explained that the ACLU has not done much work on employer privacy issues since the 9/11 terrorist attacks, which resulted in a myriad of changes in the legality of surveillance and privacy.
The last document the ACLU produced on the subject was in 1999, titled Through the Keyhole: Privacy in the Workplace, an Endangered Right.
“Generally our position is that while employers do have the right to monitor workers to insure they are being good employees, what we have seen all too often is that electronic surveillance, just because it’s so easy goes too far,” Stanley says. “Workplace monitoring is something that should be narrowly tailored. It shouldn’t create an atmosphere of pervasive intimidation or surveillance.”