An employer demanded that its employees allow around-the-clock monitoring of their whereabouts and then terminated an employee because of her refusal to comply, according to a lawsuit filed last month. Arias v. Intermex Wire Transfer, LLC, et al, No. _____, complaint (Cal. Super. Ct., Bakersfield Co., May 5, 2015). The lawsuit’s claims include invasion of privacy, retaliation, and wrongful termination. The case involves smartphone and Global Positioning System (GPS) technology, and it may therefore present questions that are relatively novel to the legal system. The retaliation claim is based on a California statute that is similar to laws in New Jersey and New York.
The plaintiff began working for the defendant as an account manager in February 2014. According to her complaint, her supervisor told her that she was expected to keep her phone powered on at all times in order to receive calls from clients. In April 2014, the defendant allegedly instructed its employees to install a mobile application (“app”) known as Xora on their smartphones. This app uses the phone’s GPS capabilities to track users’ whereabouts and movements.
The plaintiff’s supervisor allegedly told her that the company would be monitoring employees during both work and non-work hours. While she did not object to monitoring during work hours, the plaintiff claims that she objected to off-hours monitoring as an invasion of her privacy, and that she believed the defendant’s request was illegal. She states in her complaint that she removed the Xora app from her phone in late April 2014, and that on May 5, 2014, she was terminated.
The lawsuit claims wrongful termination in violation of public policy and unlawful retaliation for refusing to participate in an action she believed violated her and her co-workers’ rights, as well as state and federal law. Cal. Lab. Code § 1102.5(c); see also N.J. Rev. Stat. § 34:19-3(c) (PDF file), N.Y. Lab. L. § 740(2)(c). It also asserts a common-law cause of action for invasion of privacy/intrusion into private affairs.
The Restatement (Second) of Torts identifies four elements to a claim of “intrusion upon seclusion“:
1. The defendant intentionally invaded the plaintiff’s privacy without permission;
2. The invasion would be offensive to a reasonable person;
3. The defendant intruded upon a “private” matter; and 4. The plaintiff endured mental anguish or suffering.
Recent New Jersey decisions involving electronic monitoring and invasion-of-privacy claims look at whether the monitoring occurred where the plaintiff had a reasonable expectation of privacy. In Soliman v. Kushner Companies, 77 A.3d 1214 (N.J. App. 2013), the court allowed a claim to proceed against a landlord accused of placing concealed video cameras inside public restrooms. Placement of a GPS device on a plaintiff’s car by a private investigator, however, did not meet the legal standard because the plaintiff did not show that “he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy.” Villanova v. Innovative Inv., 21 A.3d 650, 651-52 (N.J. App. 2011).
The New York Court of Appeals affirmed the use of GPS to track an employee in Cunningham v. N.Y. State Dep’t of Labor, 997 N.E.2d 468 (N.Y. 2013). That case is easily distinguishable from Arias, though, since it involved an investigation into suspected timesheet fraud instead of ongoing monitoring.
If you need to speak to an employment law attorney about a claim for retaliation, or another employment law matter in New Jersey or New York, contact the Resnick Law Group today at 973-781-1204 or (646) 867-7997.
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