A US sales executive is suing her former employer after they allegedly fired her for deleting an app used to track her, a case that has raised some interesting questions about the divide between accountability and privacy.
But are they actually allowed to…?
An Ankle Bracelet For Employees
Myrna Arias particularly objected to being monitored when off-duty using Xora, so uninstalled it in late April. She was then fired on 5th May.
Founded in 1999, ClickSoftware, creator of Xora, offers efficient management ideas, notably GPS based around Google Maps, so employees can be tracked in order to eliminate the need for timekeeping equipment, calculate estimated arrival times, and identify the correct and quickest routes. This is available for free on Android and iOS, while upgrades also include transmitting job receipts.
According to the $500,000 lawsuit, Arias’ manager at Intermex supposedly “bragged that he knew how fast she was driving at specific moments ever since she installed the app on her phone.”
She says that not only was this an invasion of privacy – especially as she was required to keep her phone on 24/7 to answer calls from Intermex clients – but also that firing her for removing the app was in violation of several labor codes. She furthermore likened it to a prisoner’s ankle bracelet.
ClickSoftware, meanwhile, says Xora should only be launched when employees “start their day”, that it’s not meant for day-long tracking. However, Xora may have a “clock in/out” function, but that doesn’t disable its GPS.
We’ve got to wait to find out how this case develops, but it does raise questions of how far a firm can go to keep tabs on its employees, and what constitutes invasion of personal privacy.
When Can You Be Spied On?
Mark Weston of law firm Matthew Arnold & Baldwin told the BBC that an employer:
“would not be allowed to track an employee without the consent of that employee… In the US, things may be looser because many employees there are employees ‘at will’. Accordingly, employers have far greater flexibility than in Europe to dismiss an employee who is not playing ball.”
If surveillance were without your knowledge, it would, in most cases, be unlawful, but employers still have the right to monitor you in certain situations. In the workplace, they can record you on CCTV (with obvious exceptions like toilets – unless there’s suspicions of drug dealing taking place), point of sale information (i.e. till activity), and listen to phone calls. In the UK, the storage of these records is all covered by the Data Protection Act.
So, too, is tracking your Internet usage: what sites you frequent, and emails you send and receive. A study by the Center for Business Ethics at Bentley College revealed that most employers allow a certain amount of personal Internet usage, but only at a “reasonable” level. This obviously accounts for NSFW sites, but the actual definition is often a gray area.
Of course, there are conditions. This monitoring cannot be in secret and there must be justification for it, notably preventing crime, checking for unauthorised (i.e. private) use, and making sure the correct procedures are adhered to.
Much of this is stated in the reams of handbooks, notes, and contracts you’re given at induction.
But they should only track you during working hours. Many employers with engineers on the road choose to keep tabs on where their vehicles go, but that should stop after a working day. Unless, that is, if the vehicle is owned by your firm – in which case, management can check you’re not using it for private purposes for liability, insurance, and taxation reasons, and prevent crime. The Electronic Privacy Information Center’s Alan Butler confirmed:
“When an employer is tracking their employees’ movements completely unrelated to any work function, that is completely inappropriate… An employer is not justified in firing an employee simply because they don’t want to submit to 24/7 location monitoring.”
However, he further clarified that “we don’t have any comprehensive legislation, certainly not on the federal level, in the United States dealing with location tracking issues.”
Regardless, employers are accustomed to not only reading emails but also SMS messages on pagers. Things get more complicated in America, though, as individual states have different laws, governed by their own state labor departments; if a state doesn’t specifically address workplace privacy, courts have to weigh up your right to privacy, and the right of your employer to account for your working hours.
But what if you work from home?
It depends on whether you’re using a laptop provided by the company, or using their intranet though a Virtual Private Network (VPN). Your activity with either can be recorded and tracked.
What Can You Do If You’re Not Happy?
You might not be happy with the level of surveillance at your workplace, but what can you actually do about it?
You could, of course, talk to those in charge. Employers have to inform you about monitoring, and the techniques used have to be as non-intrusive as possible. If you can think of a better and more viable way, suggest it to them. Be sensible though: it would naive, for example, to think a sales assistant isn’t going to be monitored for what they do at the checkouts.
It’s also worth checking your contract to see what surveillance is covered by it, and if you think something is omitted something, speak to a union representative.
And When Should You Be Tracked?
In short: yes, your employer can track you – but only under certain conditions.
They can track your Internet usage, emails, and phone calls. But this surveillance can’t be concealed, and you have the right to know what records are being kept and why. You can still complain, but if it’s lawful, it’s like shouting into the wind. Worse than that, it could have serious consequences for your career.
So when is it okay for an employer to keep tabs on their employees? How far is too far? Do you personally object to how your employer spying on you? How hard is it for employers to justify surveillance on their workforce?