5/12/2015
A former sales executive for the money transfer service, Intermex, filed a lawsuit last week in Kern County Superior Court in central California, alleging that she was fired for disabling a company-required app on her phone that constantly tracked her motions. Myrna Arias, who worked at the Bakersfield-area company, claims she was fired after uninstalling the app Xora, (now known as Clicksoftware Xora StreetSmart). Employees for Intermex were required to download the app. After complying, Arias discovered shortly afterward while talking to a Xora trainer, that the app tracks her movements through GPS on a 24/7 basis. She says when she and other employees confronted her boss, John Stubits, about privacy concerns, he bragged about being able to track where she was at any moment and that he knew how fast she was driving. When she told him the practice was illegal, the suit alleges that he replied telling her to tolerate it because Intermex pays her more than Netspend, the company from which she was recruited. Arias was fired by the company a few weeks after uninstalling the app.
Although Arias had no complaint about using the app while at work, she considered the off-duty tracking to be an invasion of privacy, likening it to a prisoner’s ankle bracelet. Attorneys for Arias claim she was an outstanding employee who met every quota, averaging $7,250 per month in her brief stint with Intermex. The lawsuit also alleges underhanded tactics by upper-management, including Stubits who used to work with her at rival, Netspend. As a condition of joining Intermex, Stubits agreed to allow Arias to continue working at NetSpend for 3 months until her medical benefits started at Intermex. However, the suit alleges that after she was fired by Intermex, but still working at Netspend, Intermex CEO Robert Lisy informed Netspend management of her dual positions, precipitating Netspend’s firing of Arias. The claims in the suit include invasion of privacy, retaliation, and unfair business practices, with the plaintiff seeking roughly $500,000 for lost wages.
The use of tracking software such as Xora StreetSmart is increasing with frequency, especially in industries like insurance and other professions with multiple affiliates working independently. The Clicksoftware website, however, implies that the app is intended to be strictly for business use, stating “When your field employees start their day, they simply launch the application on their mobile devices.” The potential for abuse, however, is also implied on the site, that bosses can “See the location of every mobile worker on a Google Map. You can drill down on an individual worker to see where they have been, the route they have driven and where they are now.”
If the claims in the suit are found valid, even though the example may be extreme, it may offer pause to some companies’ policies towards monitoring employees. It is likely that many companies would not exploit the app for off-duty situations, but given the trend for corporations to monitor employee’s social networking activities, it wouldn’t be a shocking development. The reasonable expectation of privacy has become an exploding issue recently, with major decisions just last week regarding NSA surveillance and the police use of cell phone call information without a warrant, among others. A positive verdict for Arias, even in a civil setting, could lead to policy discussions and changes due to litigation risk throughout corporate boardrooms. An appeal could send the case and the philosophical issue up the judicial hierarchy, potentially causing waves of precedent. For companies like Clicksoftware and future startups, it may inspire re-engineering to create easier methods of disabling without uninstalling, or require explicit contractual agreements with purchasers, releasing them from liability if privacy concerns arise.
Sources:
Ars Technica – David Kravets
Slate – Lily Hay Newman
Yahoo Tech – Daniel Howley
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