Expectations of Privacy and the Limits of Employee Monitoring [e191]

May 18, 2015

Nasir and Matt get into the story about a California woman who was fired for deleting an app on her phone that allowed her employer to track where she was at all times.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: That’s Matt Staub. Episode 191 about to be put into the books of records. Probably I suspect that this episode in particular will probably end up in the Library of Congress – maybe not today, maybe not tomorrow, but someday.

MATT: Yeah, probably not but…

NASIR: Well, what I mean by that is I’m going to take the episode and then walk into the Library of Congress.

MATT: Okay. Then, it will happen, I agree with you.

NASIR: Next time I’m in DC.

MATT: So, you know, the more I think about the story we’re talking about today, I think I might have actually gotten an invite for this app in the past. If it wasn’t this one, it was a similar one. My mother-in-law sent me this request for an app and I don’t know if it was… is it Xora, I’m assuming?

NASIR: Yeah, Xora – except now it says Xora is now a click software solution. I don’t know what that meas.

MATT: So, it was something where it would basically just track wherever you were 24/7/365 because I had got the request. I was like, “I am definitely not doing this.” She sent it to a bunch of people in the family so it was like, yeah.

NASIR: Oh, okay. There’s other apps like that and I think my family used Life360 which you can see where your family is at all times.

MATT: That was it. That was it.

NASIR: Oh, that?

MATT: Yeah.

NASIR: That’s completely different than what I think this is but anyway…

MATT: Similar idea – it’s tracking. It would have been more appropriate I guess than what happened here. This was a woman in California who worked for this company and I guess part of the requirement for her job was to have this Xora app on her smartphone. It’s a job management app. I guess that’s the big difference – it’s a job management app with a capability of monitoring as a GPS where people go. That is the difference.

NASIR: Yeah.

MATT: Okay. But still… the idea’s still there. So, she had that on her phone and I think she said she was okay, she was fine with it. Her employees were fine with it when they’re working but the problem is, when they leave the office, it’s on the employee’s phones and so it’ll just track wherever they go so it’s essentially a GPS for that. That’s my Life360 whatever aspect to it. And so, she didn’t like this aspect of it – and I think most people wouldn’t as an employee – and so she deleted it from her phone and the employer responded by firing her because he said that she needed to have it on her phone. I guess I haven’t looked at the actual or haven’t used the actual app itself so I don’t know how crucial, if there’s an easier alternative that this employer could have used to achieve a similar thing that didn’t track where she was at 24/7 but, yeah, I mean, there’s obviously some clear privacy issues with this story, especially when they leave the office.

NASIR: Employers are funny sometimes. I mean, they want to have so much control over their employees. My first question is, “Why?” This person is a sales executive. Why do you need to know where they’re at 24/7 or frankly even during the job? Like, do you have such mistrust of your employees that you want to micromanage them that way? It seems strange to me, no?

MATT: With certain exceptions. You shouldn’t really care what your employees do when they leave the office. I mean, they’re in there for the time they’re paid to work and the other time it’s their time. They take the money they’ve used by working for you and do things that they like to do. I mean, I don’t have employees myself but I don’t think I would really care to keep tabs on them outside of the office, like I said, so long as they’re not doing anything illegal or being on the news for something that’s going to be a bad name for the company.

NASIR: Yeah. So, let’s break this down here. Some of these allegations that she’s making are a problem, I think, for the employer if they’re true. I think the main reason everyone needs to understand that this is California. California, within its state’s constitution, actually has a privacy protection within its governing law. This is much different in the sense that even our federal constitution doesn’t have a right to privacy. There is some thought that it might be implied and so forth but that’s a separate issue. But it explicitly states it in California and, because of that, California has extended that every employee has a reasonable expectation of privacy for their acts and so that’s why maybe we’ve discussed in the past, when it comes to monitoring email and things like that, there are some things that people don’t have a reasonable expectation of privacy, especially when it comes to work computers and, even then, it’s still encouraged to make sure that they’re made aware. But I think we can all agree that people have a reasonable expectation of privacy when they’re off work, at home, and they’re going to dinner and their boss knows where exactly you are at any time. That seems way past the line.

MATT: Yeah, I don’t even think it’s an argument. It’s just pretty obvious. There’s a line, it’s drawn in the sand, and they’ve definitely crossed it. It’s so outrageous to monitor someone in that capacity outside of work. I guess the employee in this situation, I don’t know if they necessarily cared about knowing all of that but it was the fact that they terminated her as a result of her deleting the app. I mean, it seems like that’s what he cared about first and foremost.

NASIR: And so, one of the things you can see here, one of the things is wrongful termination. That’s kind of an interesting aspect of this. Because she turned off the app or uninstalled the app – that I believe was her phone – and there was some discussion if this was a company phone, would it make any difference? I don’t think so because I don’t know if she had a right to uninstall the app in the sense that, okay, because she uninstalled the app and now she gets terminated, was that the illegal act? I think the aspect that she was uninstalling it for purposes of protecting her privacy has to be connected to the actual uninstalling of the app, if that makes sense.

MATT: Say that one more time.

NASIR: So, what I’m trying to say is that, if you’re requiring an employer to have an app on their phone and they uninstall it and you terminate them for that, that’s not an illegal termination most likely because that may be a condition upon employment. But because the app – and let’s say it’s being alleged that this app invades her privacy and, in order to protect her privacy, she uninstalls the app, that’s the problem, right? Because of this privacy aspect. Without that connection, then there would be a whole different story. Part of the problem with this particular application is that, apparently – and I was looking to this, I forget what it’s called already, you thought it was Life360 which it’s not, it’s called ClickSoftware now – I guess it changed its name, it used to be called Xora. But the point is I don’t think there’s a way for the administrator to turn off the GPS in the sense that once you have it on, it’s on, and so, if you think about it, if she was given a work phone – you know, separate from her personal phone which maybe she turned off and on when she was on duty – then this wouldn’t be an issue. But because it’s required to be on her personal device, she wants to use her phone unless she uninstalls the app and it installs it as she leaves and goes to work, she really has no other option other than to uninstall the app in order to protect her privacy.

MATT: Yeah. I mean, I just assumed that that was the case – that she couldn’t turn it off – and I guess that would be an option for her to uninstall it every day she leaves and install it back but it’s a lot of work to have someone to do. Like I said, there’s a bunch of claims that she’s making her causes of action and I think, like, the privacy thing seemed pretty clear cut. I mean, the label ones might be more difficult to prove, just kind of depends. But, at the end of the day, we assume that this is just going to be another settlement and we’re not going to get a court ruling on how they approach this. I mean, I’m just guessing what’s going to happen but, if that’s the case, it’s unfortunate because I’d like to get some sort of opinion, especially in California, on how they view this and what the limits are. I mean, it’s pretty clear that employers can’t monitor where their employees go outside of the office after they’re done working for that day so I’d be interested to see what the limits were in terms of, like, let’s say there’s a company cell phone and she takes it home and it has the Map My iPhone on it or a similar thing and they can just see where she’s at, you know, at that point, that’s a little bit different because it’s a company-issued phone and maybe it’s supposed to be cared for in a different way. I don’t know. I wish this would get more fleshed out because I feel like we’re not going to get the answer that we want.

NASIR: I think you’re right, especially with the publicity now that it has because, I mean, that’s how we came across it and I’m looking at the plaintiff’s attorney and seeing what more they have to say. Looks like a Gail Glick – it could be a girl’s name or a guy’s name.

MATT: No, Gail, yeah. I know Gail.

NASIR: Oh, you know Gail – Gail Glick – I was just trying to figure out if I should say he or she but I’m going to assume it’s a she just for the heck of it. She brings up the issue that not only was the GPS never turned off but the management actually used the monitoring off work time and she says that because, apparently, the management knew when she was driving, how fast she was going, or whether she was speeding or not, and time spent at other locations and so forth. Would this make any difference if the management company never used the app to monitor her on her personal time just didn’t look at that time? I don’t think it would because the fact that it’s not turned off because that data’s available, there’s no way to protect your privacy in the sense that how do you know that your management is not using the app for that purpose?

MATT: Yeah. I mean, I think it would change things in the aspect of she would get less money out of the settlement that’s going to happen but now, yeah, that was the mistake saying that statement. I mean, really, who cares? I mean, if that’s what you’re spending your time doing, that’s not a very fun way to live your life in my opinion. I mean, I agree with you, it’s just the fact that it’s on the phone and it’s tracking her. Whether they looked at it or not is probably not going to make a huge difference. I mean, they could have always just lied about it, too. I guess if you logged in and checked it out. Like, you don’t know if I’m looking at a phone right now.

NASIR: Exactly.

MATT: I guess the app can be open but yeah.

NASIR: I’m so annoyed about my office right now. My light’s turned off because the motion detector turned and, like, I have this motion detector in my office so, like, if no one’s in here, it turns off. But it’s ridiculous because, after fifteen minutes, it turns off and I’d pressed some buttons and now it won’t even turn on manually so I have no idea what’s going on so I may have to just sit here in the dark.

MATT: Lights out! I think that means the episode was so good that we shut the lights off.

NASIR: It’s probably not going to get dark for another hour but it’s storming outside so that’s why I look so dark in here.

MATT: Wasn’t there supposed to be pretty crazy storms there that already happened?

NASIR: Oh, yeah. Well, it’s been going through Texas and, all week, it’s been a storm pretty much it’s rained pretty hard all day which I have a great view from my office to see it which I always enjoy the stormy weather here.

MATT: Good to know.

NASIR: Sorry, I had to complain about the lights because it’s very distracting.
Anyway, bottom line is that I think it’s fine. I mean, this app is actually pretty useful. I was looking at it because it’s good for, like, delivery. If you have a work force that’s constantly out there and there’s a lot of reasons why you want to track to make sure – even for a legal liability perspective – to make sure that they’re on the job. If they into an accident, you can show whether or not they were actually on the job or within their scope of employment or if they’re dilly-dallying out there and, you know, for recourse of actual keeping discipline. Even though I said in the beginning, “Why do you want to keep track of your employees to such an extent?” I understand the benefit from it.

MATT: Yeah.

NASIR: But then, at the same time, if you get some pushback from your employees saying, “Hey, look, you can’t track me while I’m home. That’s not right. Just give me a company cell phone and we can be fine.” But, no, they want to save money, of course, and just have the employees use their personal cell phone device.

MATT: Yeah. I mean, I’m with you on that. I mean, the idea of them using it to track things for work purposes, yeah, that’s fine. Obviously, the clear line of…

NASIR: But, you know, I just want to reiterate, this lawsuit’s I think very unique to California because there’s not a lot of other states that have these kinds of privacy protections. But it goes to show you that there means that there are employees out there in other states that would not necessarily be protected in these same ways. But, at the same time, I still think there may be some recourse, but very limited.

MATT: Yeah, I can’t even record a phone call. I have to get the consent of the other side as well. It’s ridiculous in this state.

NASIR: No, not in Texas. You can pretty much record whatever you want.

MATT: Which was the craziest thing about that Donald Sterling lawsuit. Well, actually, obviously, that’s not the craziest thing about that Donald Sterling incident.

NASIR: No, that’s not the craziest, yeah.
All right. Well, I think that’s our episode for the day.

MATT: Let’s shut the lights off.

NASIR: We’ve got to take a moment here. This is going to be in the Library of Congress.

MATT: I say let’s shut the lights off.

NASIR: Yeah, lights are still off. I’m going to work on this right now after we get done here.
Thanks for joining us, everyone.

MATT: Yep, keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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