Employer Use of GPS Tracking Raises Privacy Concerns

Applications from such companies as Xora, Teletrac, Track My Work Force, and boomr allow employers to track the whereabouts of their employees through GPS. One user of Xora's application has now become the subject of an invasion of privacy lawsuit. As reported by the Courthouse News Service, Myrna Arias claims that Internex Wire Transfer violated her privacy by tracking her movements with Xora's software on her cell phone. According to her complaint (filed on May 5, 2015), she did not have an issue with being tracked while on duty, but likened the round the clock tracking to wearing an ankle bracelet. Shortly after she uninstalled the application to protect her privacy, she was fired.

In general, employers may monitor their employees activities electronically without invading a legally protected privacy interest, so long as they give notice of what they are doing. For example, if the employee handbook warns employees that electronic communications on employer-provided equipment are not private, they cannot be heard to complain that the employer accessed their emails, even if they contained attorney-client communications. See Holmes v. Petrovich Development Co., LLC, 191 Cal.App.4th 1047 (2011).

Tracking off duty activity by GPS may not be so easily justified by disclosure of the surveillance. While the employer as an interest in material that passes through its communications systems, it has usually has no interest in the off duty activities of its employees. Because the extent of privacy protection depends in part on a balancing of the employee's interests against those of the employer, the lack of a legitimate interest in off duty activity strengthens the employee's privacy claim.

Arias's complaint against Internex Wire Transfer relies in part on California Penal Code section 637.7, which bars using an electronic tracking device to determine the location or movement of a person. However the definition of electronic tracking device is limited to a "device attached to a vehicle or other movable thing." That does not appear to apply to software installed on a cell phone.

Workplace Surveillance and Investigations

Two articles in The New York Times today prompt consideration of the appropriate place for surveillance in the workplace. See "Unblinking Eyes Track Employees" and "American Apparel Ousts Its Founder, Dov Charney, Over Nude Photos".

Employers must strike the proper balance between an employee's privacy interest and the employer's interest in monitoring activity in the workplace. As a legal matter, so long as they give appropriate notice of their intentions and stay away from such intrinsically private places as restrooms, employers are free to monitor all conduct in the workplace. See, for example, TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 117 Cal. Rptr. 2d 155 (2002) (employer entitled to search employee's home computer because the employee had acknowledged the employer's policy allowing such access). For one of the restraints on the right to intrude, see Loder v. City of Glendale, 14 Cal. 4th 846, 59 Cal. Rptr. 2d 696, 927 P.2d 1200 (1997) (although applicants may be forced to submit to drug testing, existing employees may not in the absence of extenuating circumstances).

The "unblinking eyes" article discusses monitoring software that has helped businesses by identifying activities that make employees productive, but points out that, without some assurance of privacy, the surveillance may not be effective.

The article on the ouster of American Apparel's founder shows the importance of being able to investigate employee behavior, even at the highest levels of an organization. If there is not enough monitoring to ferret out harassing behavior, the entire organization may suffer irreparably.

May Employers Base Employment Decisions on Off-Duty Conduct?

Three teachers have recently been in the news for their extracurricular activities. A Philadelphia high school teacher was suspended for complaining on her blog that her students acted like "rude, disengaged, lazy whiners." A Florida high school football coach was fired for sending racy pictures to his non-student girlfriend. Another Florida teacher was fired for posting to Facebook that gay marriage was a sin and that same-sex unions were a cesspool. See Teachers Under The Morality Microscope by Jonathan Turley in the Los Angeles Times. These and other cases raise questions about the legal limits on an employer's ability to make employment decisions based on off-duty conduct.

Private Employers

Under the at will presumption of Labor Code section 2922, a private employer may discharge an employee for any reason, so long as it is not an illegal reason. Thus, in the absence of a statutory bar, an employer may base discharge on off duty conduct. For example, even though tobacco use is lawful, an employer could require its employees to refrain from tobacco use. (For an example of an unsuccessful effort by a smoker to challenge his termination, see Rodrigues v. EG Systems, Inc., 639 F. Supp. 2d 131 (D. Mass. 2009).) In reaction to that possibility, some states (not including California) have enacted protections for tobacco-using employees. (See this compilation by the National Conference of State Legislatures.)

Although the language of California Labor Code section 96(k) appears to protect employees from adverse action based on "lawful conduct occurring during nonworking hours away from the employer's premises," it has been interpreted to apply only to conduct that already has constitutional protection. See Attorney General Opinion No. 00-303 (10/10/2000); Barbee v. Household Automotive Fin. Corp., 113 Cal. App. 4th 525, 6 Cal.Rptr.3d 406 (2003); Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 14 Cal. Rptr. 3d 893 (2004).

California Labor Code section 432.7 bars employers from taking adverse action based on any arrest or detention that does not result in a conviction, but allows them to inquire about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. Thus, the employer may base adverse action on results of its own investigation of the facts surrounding the incident for which the employee was arrested. Cranston v. City of Richmond, 40 Cal.3d 755, 710 P.2d 845, 221 Cal. Rptr. 779 (1985).

California Labor Code sections 1101 and 1102 prohibit employers from acting against their employees based on their political beliefs and activities. Under those provisions, a newspaper editor who was fired after public stating his support for a mayoral candidate had a cause of action for wrongful termination. Ali v. L.A. Focus Publication, 112 Cal.App.4th 1477, 5 Cal.Rptr.3d 791 (2003).

As we explained in a previous blog entry, posting comments online about one’s employment may be protected under the National Labor Relations Act. Basing action on information from an employee's off duty online comments may also violate privacy and wiretapping laws. See, for example, Pietrylo v. Hillstone Restaurant Group, Case No. 06-CV-5754 (D.N.J. Sep. 25, 2009), where a jury awarded $3,400 to two employees fired after management got log in to their private MySpace chat group.

An employee may claim that the employer punishes off duty conduct differently based on a protected characteristic. For example, after Delta fired a female employee who posted suggestive photos of herself in a Delta uniform on her "Queen of the Sky" blog, she claimed that the airline did not treat male employees similarly. Simonetti v. Delta Airlines, Inc., Case No. 05-cv-2321 (N.D. Ga. 2005). Her case was dismissed without prejudice during Delta's bankruptcy proceedings, and never decided on the merits.

Public Employers



As a general rule, public employees are not at will, but may only be discharged for good cause. Their statutory right to continued employment establishes a property right that is protected by due process. Skelly v. State Personnel Bd., 15 Cal.3d 194, 539 P.2d 774 (1975). These principles impose additional restrictions on public employers who seek to discharge employees for off duty conduct.

Generally, a public employer must show that the off duty conduct is rationally related to the employee's particular job, and would result in impairment or disruption of public service. For example, the U.S. Supreme Court upheld the discharge of a police officer who sold video of himself stripping and masturbating online, because his off duty conduct was "detrimental to the mission and functions of the employer."
City of San Diego v. Roe, 543 U.S. 77 (2004). By contrast, a male correctional officer could not be terminated for wearing female clothing away from work, because there was no evidence that his performance of his job was impaired. Yancey v. State Personnel Bd., 167 Cal.App.3d 478, 213 Cal. Rptr. 634 (1985).

Although criminal convictions may constitute good cause for termination of a public employee, the employer may not rely on the conviction if it resulted from a nolo contendere plea. County of Los Angeles v. Civil Service Com., 39 Cal.App.4th 620, 46 Cal.Rptr.2d 256 (1995). Instead, the employer must introduce evidence that independently establishes the wrongdoing.

Employee Privacy

A recent decision by the First District Court of Appeal in San Francisco reminds that employers must be sure to protect employee privacy. In Life Technologies Corp. v. Superior Court, Case No. A131120 (Jul. 14, 2011), the court reversed an order granting discovery of individually-identifying personnel information in an age discrimination and retaliation lawsuit. The question in such cases is whether there is a "serious invasion" of an employee's "reasonable expectation of privacy," as explained in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360, 53 Cal.Rptr.3d 513 (2007).

The Court of Appeal identified the following principles for determining the discoverability of personnel records of non-witness third parties: (1) The public interest in preserving confidential personnel information generally outweighs a private litigant's interest in obtaining that information. (2) A private litigant may tilt the balance in his or favor only by showing a compelling need for particular information that cannot reasonably be obtained through depositions or from nonconfidential sources. (3) Even where the balance tilts in the private litigant's favor, the scope of disclosure must be narrowly circumscribed. In the case before the Court of Appeal, the trial court had failed to balance the interests correctly, and had failed to provide sufficient safeguards for the disclosures that it ordered. It should have required notice to the affected employees, and then sealed or severely limited the use and dissemination of the disclosed information.

Here are some additional examples of restrictions on acquiring and disseminating employee information:

(1) Applicants for employment may be subjected to drug screening, but once they become employed, may only be required to undergo drug screening where there is reasonable suspicion of improper activity. Loder v. City of Glendale, 14 Cal. 4th 846 (1997).

(2) Targeting a private office for video surveillance constitutes an intrusion into an area as to which the employee has a reasonable expectation of privacy, but the intrusion is not actionable unless the surveillance captures the employee's image. Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).

(3) Employees may have a privacy interest in their work email and Internet use, but it can be overcome by a warning from the employer that email and Internet use is subject to monitoring and that employees should not expect to have any privacy when using the employer's systems. TBG Ins. Services Corp. v. Superior Court, 117 Cal. Rptr. 2d 155 (2002).

(4) Employers must not access employees' confidential medical information without consent, and must not retaliate against employees for standing on their right confidentiality of their medical information. Pettus v. Cole, 49 Cal. App. 4th 402 (1996).

U.S. Supreme Court Considers Privacy Interest in Electronic Messages

On Monday, April 19, 2010, the U.S. Supreme Court heard argument in a case that involves public employee privacy interests in electronic messages delivered to pagers. The City of Ontario had audited text messages sent to pagers issued to its police officers to determine if the pagers were being misused for personal purposes. The Ninth Circuit ruled that the City had violated the officers right of privacy. The Supreme Court granted certiorari to consider these questions:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court's Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member's SWAT pager have a reasonable expectation that their messages will be free from review by the recipient's government employer.

The transcript of the oral argument is available here. The Court should hand down its decision by the end of June.

A report about the Ninth Circuit's decision appeared in an earlier post on this blog.

City of Ontario v. Quon, Dkt. No. 08-1332.

UPDATE: The Supreme Court eventually ruled that there was no Fourth Amendment violation because the search of the text messages was motivated by legitimate work-related purpose, and was not excessive in scope. City of Ontario v. Quon, No. 08-1332 (Jun. 17, 2010).