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Employee Location Privacy - Can My Employer Track Me?

-- By BrianJohnson - 15 Apr 2021

Introduction

In today’s more connected world, its extremely common for employees to be given technology by their employer. With these new tools, employers also have been given further insight into employees activities than ever before, monitoring their communications and utilization of the employer’s technology. Generally, employees do not have an expectation of privacy when using an employer’s systems, since they are not the property of the employee. However, the question remains in today’s world – can an employer track not only what I’m doing on their device, but also where I am when I do it? GPS and location data is more available than ever before, and that work phone in your pocket may be telling your boss exactly what you’re up to on a given day. This article will delve into the limits on employers collecting and using the location data of their employees.

Current Precedent on General Right to Location Privacy

Location Privacy in the General and Private Contexts

Location Privacy Generally

Currently, exact location data is private information protected under the 4th amendment from unreasonable search and seizure. Katz v. United States (U.S. 1967) established that, “the Fourth Amendment protects people, not places” and expanded the 4th amendment to protect against invasions upon a reasonable expectation of privacy. United States v. Jones established that this expectation of privacy extends to the right to be private in the movement of your person, and that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” After Jones, the government could neither retrieve cell phone GPS data or place a GPS tracker on a suspect’s car without a warrant, to preserve their privacy. This right to personal location data was expanded to more generalized cell phone location data in Carpenter v. United States, which held that cell site location information (substantially less precise than GPS data, but still highly accurate in urban environments) required a warrant as well. All of these precedents have established and protected the right of an individual to be private from their government, but not necessarily their employer.

Location Privacy for Private Actors

The issue of privacy is more complicated when it comes to employers and employees. As private actors, employers are not beholden to the same restrictions as the federal government, but must still respect the recognized right of privacy that all people enjoy. So the question becomes – if an employer has GPS on my phone, can it use that information to track my whereabouts? What else can they see me do? Courts have generally recognized that employers can monitor their property – if you have a work computer for example, the employer could monitor what sites you visit on the internet, the software downloaded on the computer, and documents stored on the computer, the words typed into the computer, and even if the computer is idle. However, these are all things that directly relate to your work, or to the health of the property. They’re making sure you don’t go to dodgy sites to stay on task and protect the computer from viruses – similarly, that’s why they’re watching what you download. However, location data is a lot harder to directly tie to work product, and an employer would only theoretically be allowed to see where their employee is while they are working. Say for example, an employee calls out sick. That day, during work hours, an employer could theoretically look up their cell phone location data. Then, seeing that the employee is currently flying over the Atlantic ocean to go on vacation, the employer could use that data to see an employee was lying about their reason for missing work. In most states, this form of monitoring would be permissible, even without the informed consent of the employee to the use of location data. In states with stronger privacy protections for citizens, such a use of location data may be improper without the informed consent of the employees.

Monitoring Gone Awry - Arias v. Intermex Wire Transfer, LLC

That’s not to say monitoring of location data is per se permissible for employers. Importantly, if an employer was to monitor their employee during the night, or during their lunch break, and take disciplinary action based upon that, they may be subject to a wrongful termination lawsuit. Employers do not have a general right to know what their employees are doing when such employees are not actively “on the clock” for that employer. Such a suit commenced in 2015 in Arias v. Intermex Wire Transfer, LLC., after the employer required the plaintiff (and other employees) to install a monitoring app on their smartphones. This app had a GPS function which the employer used to track the employees at all times, including outside of work hours. Arias deleted the app from her phone, was reprimanded, and eventually terminated for her refusal to allow the company to invade her privacy. After her termination, she brought a $500,000 lawsuit against Intermex alleging wrongful termination in violation of public policy, invasions of privacy, and similar allegations against her former employer. While the two eventually settled out of court, such a case being brought exemplifies how an employer may be liable for invasions of privacy due to state tort law. In reaction to the advancement of technology, California and other states have passed legislation specifically regarding GPS tracking, which would invalidate such an effort by an employer without informed consent.

Conclusion

In conclusion, employers generally cannot monitor your whereabouts while you are “off the clock” due to the right to privacy guaranteed to every citizen. However, such a right can be waived by an employee through informed consent, and such a right does not necessarily exist if the monitoring occurred during work hours. Before monitoring their employees, employers should ensure that their state does not have any privacy protections that would bar such actions, get the informed consent of their employees, and use such data for professional reasons. As location data becomes ever more pervasive, such a right serves as a bulwark against impermissible intrusions of employers into their employees’ lives.

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