The distinction between work and leisure time has become increasing hard to identify. As other authors on the blog have demonstrated, technology plays a huge role in collapsing this distinction. Perhaps more disturbing than always being on call is the idea that employers can track employee’s physical whereabouts using GPS tracking. Employers have, with relatively little controversy, frequently placed GPS trackers on employee vehicles. But as electronic devices become more central to employee’s day to day work, employers have taken to tracking these devices as well. Courts have yet to consider GPS tracking of electronic devices, but challenges to these practices are beginning to come before courts.
Arias v. Intermex Wire Transfer is one of the first challenges to GPS tracking of employee smartphones. Intermex required all employees install an app, Xora, which contained a GPS function that allowed the company to track employee’s whereabouts. The plaintiff asked her supervisor whether employee actions off the job would also be tracked. The supervisor told her off duty whereabouts would be tracked, and confirmed that the plaintiff was expected to keep her phone on 24/7 to answer any calls from clients. The plaintiff told her supervisor she was fine with the tracking while she was on duty, but expressed discomfort with being tracked when she was off duty and during the weekends. Plaintiff claims that many other co-workers agreed with her. Ultimately, the plaintiff decided to uninstall the app, and was reprimanded for doing so. A few weeks after uninstalling the app, the plaintiff was fired. Arias sued Intermex for invasion of privacy, violations of the California Constitution and California Labor Code, wrongful violation, and unfair business practices, among other things. The case ultimately settled out of court.
Courts will undoubtedly be hearing more cases like Intermex. Unfortunately, state and federal laws are unlikely to provide much guidance. Consequently, courts will likely have to look to other analogous employer tracking contexts, like cars, to determine how they should address electronic device tracking.
This January, Ohio adopted a firearm regulation commonly referred to as a parking lot law. The law’s core provision prevents both private and public employers from enforcing workplace policies that prohibit employees with concealed carry permits from keeping their firearms in their cars while in employer parking lots. Ohio’s law is not the first of its kind. Oklahoma was the first state to pass a parking lot law; it amended existing legislation in 2004 to protect firearm owners from prohibitions on firearms in workplace parking lots. As of 2016, more than 20 states have enacted similar parking lot provisions. Passed in response to robust lobbying campaigns by gun-rights groups such as the National Rifle Association, parking lot laws vary in the level of protection they offer gun owners, but most prohibit employers from asking employees if they own guns, and prohibit employers from firing employees because they own firearms. These laws are frequently in conflict with existing workplace policies, which often limit employee’s ability to bring firearms to work. These types of laws pose major questions about an employer’s ability create comprehensive health and safety policies. On purely legal grounds, it is difficult to conclusively say that state legislatures’ regulation of guns in the workplace is impermissible. However, parking lots laws undoubtedly raise significant questions about how much discretion employers should have in regulating employee conduct.
This fall, the 11th Circuit upheld an employer policy banning dreadlocks in the workplace; the court ruled that dreadlocks are not an “immutable characteristic of black persons,” and as such, an employer’s decision to rescind an offer based on the employee’s hairstyle did not violate Title VII. The ruling drew much criticism, and sparked debate about whether Title VII jurisprudence is antiquated. The 11th Circuit’s ruling seems particularly outdated in light of recent changes to the United States Army’s grooming regulations. This January, the army issued a directive that permits female soldiers to wear deadlocks. This change is the latest in a gradual relaxing of grooming standards that have disproportionately impacted black servicewomen. The army has said little about what prompted the change, but one official said that many black servicewomen have been asking for a change in policy, given the ease of maintaining dreadlocks as opposed to other hairstyles.
The 11th Circuit’s decision comports with Title VII jurisprudence pertaining to discrimination based on race, but the outcome is, nonetheless, troublesome. The court’s decision is rooted in an outdated and formalist approach to racial identity that ignores both the interplay of race and other identities, as well more contemporary notions of what constitutes racial discrimination. This outdated line of reasoning fails to properly capture the purpose of Title VII.