Contact Us
Categories
- SCOTUS
- FTC
- Emotional Support Animals
- Service Animals
- Employee Agreement
- Remote Work
- Federal Trade Commission
- LGBTQ
- Minors
- United States Department of Justice ("DOJ")
- Work from Home
- Arbitration
- Workplace health
- Intellectual Property
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- IRS
- Temporary Leave
- Treasury
- Coronavirus
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- Paid Sick Leave
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- Overtime Rule
- Employer Wellness Programs
- Employment Non-Discrimination Act ("ENDA")
- Genetic Information Nondiscrimination Act ("GINA")
- Independent Contractors
- Kentucky minimum wage
- Minimum wage
- OSHA
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- ADA Amendments Act of 2008 (“ADAAA”)
- Adverse Employment Action
- Department of Labor ("DOL")
- Employee Benefits
- Employee Handbook
- Employee Misconduct
- Employment Discrimination Laws
- Employment Law
- ERISA
- Fair Labor Standards Act (FLSA)
- Family and Medical Leave Act (“FMLA”)
- Human Resource Department
- Kentucky Civil Rights Act (“KCRA”)
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Overtime Pay
- Pregnancy Discrimination Act
- Social Media
- Social Media Policies
- Title VII of the 1964 Civil Rights Act
- U.S. Department of Labor
- Union
- Young v. UPS
- Amazon
- Americans with Disabilities Act
- Bring Your Own Device
- BYOD
- Civil Rights
- Compliance
- Department of Health and Human Services
- EEOC
- Portal-to-Portal Act of 1947
- Security Checks
- Security Screening
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- U.S. Supreme Court
- Uncategorized
- Volunteer
- Creech v. Brown
- EEOC v. Hill Country Farms
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Lane v. Franks
- Micro-unit
- Specialty Healthcare & Rehabilitation Center of Mobile
- "Ban-the-box"
- Bullying
- Citizens United v. Federal Election Commission
- Cloud
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Crystalline Silica
- Davis-Bacon and Related Acts
- Drug-Free Workplaces
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Illness and Injury Reports
- Job applications
- Kentucky Department of Workers’ Claims
- Kentucky Wage and Hour Act
- McNamara O’Hara Service Contract Act
- Mine Safety and Health Administration ("MSHA")
- NFL Bullying Scandal
- Non-exempt employees
- Northwestern
- Permissible Exposure Level ("PEL")
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- Shazor v. Prof’l Transit Mgmt.
- Violence
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- 2013)
- At-will employment
- Berrier v. Bizer
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- COBRA
- Companionship services
- Consumer Credit Protection Act (“CCPA”)
- Defamation
- Defense of Marriage Act (“DOMA”)
- Earnings
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Employee Hazards
- Employee of the Month Programs
- Employee Training
- Endorsements
- Federal Stored Communications Act (“SCA”)
- Federal Workplace Agencies
- Freedom of Speech
- Giant Food LLC
- Government employees
- Government shutdown
- Health-Contingent Wellness Programs
- HIPAA
- Home Health Care Workers
- Jury duty
- KYSHRM 2013
- Madry v. Gibraltar National Corporation
- Mandatory vaccination policies
- Maternity Leave
- Medical Exams
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Obesity
- Online Defamation
- Participatory Wellness Programs
- Payroll
- Pennington v. Wagner’s Pharmacy
- Pension Plans
- Private employers
- Reference checks
- Sequester
- SHRM
- Small Business Administration (SBA)
- Social Media Ownership
- Supervisor
- Tangible employment actions
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- Unfair Labor Practice
- United States v. Windsor
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- Wage garnishment
- Contraceptive Mandate
- Employee Arrests
- Employee Forms
- Employee photographs
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- FICA
- Form I-9
- Gatto v. United Airlines and allied Aviation Services
- House Labor and Industry Committee
- Job Description
- Job Requirement
- Kentucky’s Whistleblower Act
- KRS 391.170
- Litigation
- Municipal Liability
- Online Account Protection
- Patient Protection and Affordable Care Act
- Play or Pay
- Posting Requirements
- Public Sector Liability
- Record Retention
- Religious Employer
- Right to Work Bill
- Severance Pay
- Strategic Enforcement Plan (SEP)
- Supplemental Unemployment Compensation Benefits
- Tax Refund
- Telecommuting
- U.S. Citizenship and Immigration Services
- United States v. Quality Stores
- White v. Baptist Memorial Health Care Corp.
- Wilson v. City of Central City
- Class Action Waivers
- Criminal Background Checks
- Crisis Management
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Federal Department of Labor
- Informal Discussion Letter (“EEOC Letter”)
- Kentucky Labor Cabinet
- Labor and Pensions ("HELP")
- PhoneDog v. Kravitz
- Salary Threshold
- Social Networking Online Protection Act (SNOP)
- Social Privacy Laws
- Workplace Discrimination, Harassment and Retaliation
- Workplace Politics
- Business Insurance
- Communications Decency Act
- Employee Contracts
- Hiring and Firing
- Hosanna-Tabor Opinion
- Insurance Coverage
- Internet & Media Law
- Internet Defamation
- National Labor Relations Act
- Non-Compete Agreement
- Retaliation by Association
- Unemployment Benefits
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
Every step you take…can your employer be watching you?
It sounds like something out of an Orwell novel: an employer demands an employee provide electronic notice of her whereabouts at all times, on and off the clock. The employee must now face a choice – protect her privacy outside of work, or lose her job. This is, however, a true story, and one without a happy ending for the employee.
Myrna Arias, a sales executive with the wire transfer company Intermex, was given a company phone and told to install the Xora app. This app performs several employment functions, such as providing a time clock, but it also includes a GPS component that provides data back to her employer at all times. She was told to always have the phone on her and powered on, which meant that the GPS function would report her information back to her employer. Arias complained to her supervisor that, while she didn’t mind the tracking taking place during work hours, she felt that it was an invasion of her privacy to keep tracking her away from work. She later uninstalled the Xora app to protect her privacy, and she was soon fired. On May 5th, 2015, Arias brought suit against her employer for invasion of privacy and unlawful retaliation, among other counts. There has not yet been any further activity of import in the case.
With the increasing ubiquity of GPS-equipped smartphones and apps such as Xora, employers may be tempted to use these tools to track employees. They can give employers a sense of what an employee is doing or how long a task is taking when the employee is offsite, and they can provide ways for employers to determine and improve employee efficiency. While there’s a new wrinkle when ‘bring-your-own-device’ policies might require employees to install apps such as Xora on their personal phones, the phone at issue in the Arias case was company property. The question then becomes whether employers can or should continue to track and receive information about an employee during that employee’s time off the clock.
Invasion of privacy aside, there is no federal law that currently prevents the type of tracking in the Arias case. The question of the propriety of monitoring non-employment employee activity prompts a further exploration for employers, however – could the data from this type of tracking expose that employer to liability under federal laws? For instance, if the employee visits a mosque in her off-hours, and later claims employment discrimination because of her religion, would the employer’s tracking of her movements provide the employer constructive or even actual notice of her religious faith absent other evidence? What if the employer visited a dialysis clinic, or a substance abuse treatment facility? There are a myriad of locations that an employee could visit in his or her off-hours that might provide the employer with more information than the employer should have. This information, in turn, could be viewed as constructive or even actual notice that the employee has a protected condition or is in a protected class, exposing the employer to liability should a discrimination case arise. Keeping tabs on an employee’s conduct away from work may seem desirable to some employers, but too much knowledge about an employee’s off-hours conduct might only hurt an employer in the long run. There is such thing as too much information.
For more information as the Arias v. Intermex case progresses, or for helpful hints on best practices for employers, contact the attorneys at McBrayer.
Services may be performed by others.
This article does not constitute legal advice.