Wired Workplace

Kaveh Waddell | The Atlantic | January 6, 2017 | 0 Comments

Why Bosses Can Track Their Employees 24/7

Georgejmclittle/Shutterstock.com

Suppose you’re being followed. Someone’s tracking your phone, or has placed a GPS device on your car. They know if you’re at home, or a pregnancy clinic, or church, or a gay bar. Depending on who’s tracking you, this could be a violation of your fundamental constitutional rights—or it could just be another day on the job.

The Fourth Amendment protects Americans from unreasonable searches and seizures, but it only constrains the government’s actions. If local police or the FBI wants to track your car, they have to ask a judge for a warrant first. But if your boss wants to track your phone, it’s likely within his or her rights.

In fact, businesses track their employees’ locations all the time. Often, it’s to keep an eye on their equipment, like company vans or employer-issued cellphones. Other times, tracking helps bosses make sure their workers are clocking in and out on time, and that remote employees—like a technician or a plumber who makes house calls, for example—are indeed where they say they are. Tracking systems can also help employers make sure their employees are reporting mileage correctly, and that they aren’t taking detours between jobs to pick up groceries.

But GPS tracking doesn’t necessarily end when an employee’s shift does. If a worker is allowed to take a company vehicle home at night or over the weekend, it might continue sending its location. And a tracking app on a mobile phone can keep broadcasting an employee’s location during his or her off hours.

The legal landscape around tracking employees is murky. There’s no federal privacy law to keep businesses from tracking their employees with GPS, and only a handful of states impose restrictions on it. In some, like Texas, Virginia, Minnesota and Tennessee, tracking vehicles without the owner’s consent is explicitly illegal; in California, a section of the penal code forbids tracking any “movable thing,” a provision used to challenge employer tracking in the past.

But elsewhere, an employee who objects to being tracked has to fall back on asserting his or her basic right to privacy. That employee’s chances in court will depend on factors like whether or not he or she gave consent to be tracked, and whether the device being followed belongs to him or her or to the company.

“It’s very vague,” said Lew Maltby, the president of the National Workrights Institute. “It’s essentially whatever shocks the judge.”

It’s hard to know just how widespread GPS tracking is in the United States, especially because companies don’t always have to notify their employees if and when they’re tracking them. A survey released last month offered a few hints: Nearly a third of people who responded said their employer tracks them by GPS, and 15 percent said they were tracked 24 hours a day. More than 22 percent said they weren’t told they would be tracked when they started their job.

The survey was paid for by TSheets, a time-tracking software company. Its apps, when installed on employees’ phones, allow businesses to track their workers on the job. The apps report each worker’s location to supervisors every 5 to 10 minutes. TSheets used its survey to argue that employees warm up to GPS tracking once they’re subjected to it.

A spokesperson for TSheets said the app’s location-tracking feature automatically shuts off when employees clock out for the day, but that if the employee forgets to clock out, the app will continue sending the phone’s location.

Employees can also choose to manually shut off location reporting on their phone, but what happens if they do is up to their bosses. In 2015, a woman named Myrna Arias sued her former employer, Intermex Wire Transfers, claiming she’d been fired for disabling a GPS app on her company-issued phone after she figured out her location was being tracked around the clock. Her boss told her the tracking app, Xora, could even tell him how fast she was driving at any point in time, according to the complaint. The case was settled out of court.

Gail Glick, the attorney who represented Arias in court, wouldn’t comment on how the case ended. But she did say her argument, which relied in part on the section of the California penal code that restricts how GPS tracking can be used, may not have worked anywhere else.

“If you’re in California, you’re kind of in la-la land,” Glick said. “We’re kind of in a bubble.”

ClickSoftware, the company that now owns Xora, declined to comment on the case. I asked one of ClickSoftware’s clients, O2E Brands, how it manages GPS tracking. (O2E Brands is the parent company for a family of on-demand home-service franchises: 1-800-GOT-JUNK?, WOW 1 DAY PAINTING, You Move Me and Shack Shine.)

Owen Gormley, O2E’s vice president for operations, said two of its companies already use Click software, and that a third will begin using it in the coming months. Gormley said GPS tracking helps schedule visits for truck teams and optimize their routes from job to job. Some franchises track their company vehicles with GPS beacons, but the Click mobile app also transmits locations when jobs are begun and completed, and helps drivers with navigation.

Businesses seem to be getting more curious about GPS tracking. Lillian Chaves Moon, an attorney at Akerman who represents employers, says she often fields questions from companies who are considering implementing tracking systems. She says requests have increased as technology progresses—and as wage-and-hour claims become more popular—to the point that she’s giving a few consultations a month now.

According to Moon, employers have a whole lot of leeway to track their employees, both on the clock and off, and most workers have a very high bar to clear if they want to challenge their employers for invading their privacy.

“In most states, you have to show that it would be highly offensive to a reasonable person, and that’s a pretty high standard,” she said. “You have to show that it’s so egregious and outrageous.”

When Moon talks to employers, she says she recommends a set of best practices, like limiting the information gathered to the bare minimum it needs for “legitimate business reasons,” such as keeping tabs on expensive company equipment or verifying the details of an employee’s house call. The best way to protect against invasion-of-privacy claims is to disable tracking when it’s not needed, like outside of business hours, she counsels.

At least 29 states and the District of Columbia have at least some discrimination laws that prevent companies from firing employees for their off-duty conduct. In states without those laws, a boss can fire an employee for his or her actions outside of work.

“Employers have always been suspicious of employees,” said Maltby, of the National Workrights Institute. “They’ve always been nosy.” New technologies just makes it easier and cheaper to keep tabs on workers, and they will always be attractive to prying bosses.

“As long as it’s legal,” Maltby said, “some employers will do it.”

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