Myrna Arias, a former sales executive for the money transfer service Intermex, said she had no problem with having her location monitored by a GPS-powered app on her company-issued iPhone.
At least, she didn’t have any issue with her location being monitored while she was on the clock.
But being monitored 24×7, whether she was working or not? Well, that made her feel like a felon strapped into an ankle bracelet.
So after investigating the app – a job management app called Xora – she uninstalled it.
It was an act that she claims led to her being fired. Now she’s suing her former employer, Intermex, for upwards of $500,000 (£319,070).
Headquartered in Miami, Florida, Intermex processes money transfers between the US and Latin America. According to its site, it has 30,000 locations worldwide and offers services in 45 states and 16 Latin American countries.
Arias has claimed in a lawsuit filed in California state superior court that her boss at Intermex, regional vice president of sales John Stubits, fired her shortly after she uninstalled Xora: an app that Intermex required its employees to use starting in April 2014.
After researching the app and speaking with a trainer from Xora, Plaintiff and her co-workers asked whether Intermex would be monitoring their movements while off duty. Stubits admitted that employees would be monitored while off duty and bragged that he knew how fast she was driving at specific moments ever since she installed the app on her phone. Plaintiff expressed that she had no problem with the app's GPS function during work hours, but she objected to the monitoring of her location during non-work hours and complained to Stubits that this was an invasion of her privacy. She likened the app to a prisoner's ankle bracelet and informed Stubits that his actions were illegal. Stubits replied that she should tolerate the illegal intrusion because Intermex was paying plaintiff more than [her former employer, NetSpend].
According to the suit, Arias continued to work for NetSpend during her first 3 months of employment, so as to stay on the company’s medical insurance plan during the gap months in which her coverage under Intermex’s insurance hadn’t yet kicked in.
Arias said Stubits agreed to having Arias work for both NetSpend and Intermex during those 3 months because she was suffering from a severe vitamin B-12 deficiency and didn’t want to lose access to her medical treatment.
But according to the suit, Intermex was so angry at Arias’s objections to the monitoring app that it called up NetSpend to smear her reputation.
Arias says in the complaint that Robert Lisy, Intermex’s president and CEO, “telephoned John Nelson, vice president of NetSpend, and informed Nelson that [Arias] had been disloyal to NetSpend and was employed by Intermex. As a result of Lisy’s intentional and malicious interference with plaintiff’s contract with NetSpend, NetSpend fired plaintiff promptly. NetSpend specifically cited Lisy’s phone call as the reason for the decision to terminate plaintiff.”
Arias’s attorney, Gail Glick, told Courthouse News that having two black marks against her and a gap in her work history has made it tough for Arias to find a new job.
As far as the software goes, its maker’s description certainly doesn’t make it sound like the product is a perpetual motion machine, impossible to turn off.
ClickSoftware says on its site that Xora StreetSmart “is easily downloaded to your mobile worker’s phone or tablet”, and when employees start their day, “they simply launch the application on their mobile devices.”
But according to Glick, clocking out didn’t stop the GPS function, which just kept eavesdropping away.
From an email she sent to Ars Technica:
The app had a "clock in/out" feature which did not stop GPS monitoring, that function remained on. This is the problem about which Ms. Arias complained. Management never made mention of mileage. They would tell her co-workers and her of their driving speed, roads taken, and time spent at customer locations. Her manager made it clear that he was using the program to continuously monitor her, during company as well as personal time.
The complaint says that Stubits also told Arias she had to keep her phone on “24/7” to assist clients, and that she was “scolded” when she uninstalled the app to protect her privacy.
Arias is seeking an injunction and general, special and punitive damages for invasion of privacy, retaliation, labor code violations, intentional interference with contract, wrongful termination and unfair business practices.
The legal issue here isn’t an employer’s right to legally monitor employees at work if there’s a legitimate business reason to do so.
But Glick said that it’s a “complete violation of California and federal laws against invasion of privacy” if an employee has no means of stopping the monitoring.
If you’re working for a business that currently monitors or is considering monitoring employees, it’s vital to know what type of monitoring is permissible under the law.
The legal site Nolo.com would seem to back up Glick’s contention that what Intermex did was quite possibly illegal.
The site says that for public employers, both monitoring or merely inquiring about employees’ off-the-job life is largely off-limit.
As far as private sector companies go, some state constitutions, including California’s, prohibit employers from taking any job-related action against a worker based on whatever (legal) activity they do when they’re not working.
That’s not the same as forbidding monitoring of off-duty workers, though.
If the case is proven, it will be interesting to see whether state and federal privacy laws will come down on the right to off-hours privacy for Arias, her colleagues and other spied-on employees at other companies.