Can your employer track you? Lake County man fired after company’s app detected him at competitor

By Mike DeForest

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    LEESBURG, Florida (WKMG) — The day before Thanksgiving, tow truck driver Gary Leady sent a text message to his employer claiming he needed to stay home to care for his kids because his wife was sick.

But Leady admits he had an ulterior motive for skipping work that day.

“I went to a competitor and got a (job) application,” Leady told News 6.

The towing company later fired Leady after a GPS-enabled app he installed on his personal phone transmitted Leady’s secret whereabouts to his employer.

“I feel like my privacy was violated,” Leady said. “When I’m not working, on my personal time in my personal vehicle, that’s none of their business at all.”

A growing number of companies require employees to use mobile apps with GPS tracking technology for business-related purposes such as documenting attendance, logging work hours, or managing fleets of vehicles.

Under Florida law, a person acting in good faith for a legitimate business purpose may install a tracking application or device on an employee’s property, even without the worker’s consent.

While some workers have successfully sued their employers over the improper use of GPS tracking, legal experts say there are circumstances when employers can lawfully monitor their staff through GPS technology.

“The ability to track your every movement, those concerns are real,” said Marc McAllister, an assistant professor at Coastal Carolina University who teaches employment law. “Employers should have great latitude to do the things that are necessary for their business. So how far does that go?”

In a law review article titled “GPS and Cell Phone Tracking of Employees,” McAllister concluded that employers will have a much stronger defense against invasion of privacy lawsuits when they monitor an entire segment of employees for legitimate business reasons, rather than targeting an individual employee for malfeasance.

Notifying employees of GPS tracking programs and limiting the scope of surveillance to avoid collecting data about employees’ off-duty conduct will also help employers avoid liability claims, McAllister found.

“The ability to track your every movement, those concerns are real,” said Marc McAllister, an assistant professor at Coastal Carolina University who teaches employment law. “Employers should have great latitude to do the things that are necessary for their business. So how far does that go?”

In a law review article titled “GPS and Cell Phone Tracking of Employees,” McAllister concluded that employers will have a much stronger defense against invasion of privacy lawsuits when they monitor an entire segment of employees for legitimate business reasons, rather than targeting an individual employee for malfeasance.

Notifying employees of GPS tracking programs and limiting the scope of surveillance to avoid collecting data about employees’ off-duty conduct will also help employers avoid liability claims, McAllister found.

Two months after being hired at Aces Towing, Leady said his relationship with Matos was deteriorating.

“I wanted to get an application somewhere else to make sure that, if he let me go, I could get another job,” Leady said.

On the morning he planned to submit a job application at a competing towing business, Leady sent a text message to a manager at Aces Towing stating his wife was not feeling well and that he would be “staying home today to help with my kids.”

After Leady claims a relative arrived at his home to care for the children, he climbed into his personal car and headed to the competing tow company.

As he drove through Lake County, Leady’s location was transmitted to Aces Towing through a GPS-enabled app the tow truck driver had installed on his personal phone months earlier.

The app, called Towbook, is used by the towing industry to dispatch trucks and process invoices.

“There is no work phone. We use our personal phone for everything,” Leady said. “This [app] is how we receive our calls.”

Ashten Griner, a manager at Aces Towing, said he originally excused Leady’s absence due to the hardship caused by his wife’s reported illness.

But while looking at a computer map displaying the GPS tracking location of other tow truck drivers, Griner said Leady’s name unexpectedly appeared on the screen.

“When we saw Gary where he was, it was simply just because it was in the information that was already present [on the map],” Griner said. “It wasn’t specifically searched for.”

Employers who use GPS technology to monitor multiple workers for legitimate business purposes will generally have more success defending invasion of privacy claims than those who focus on a single employee, McAllister indicated.

“When you’re dealing with tracking of an entire group of employees, it becomes more likely to be reasonable,” McAllister said.

After discovering Leady was not at home, Griner drafted a termination letter that cited several prior offenses including attendance issues, damage to a tow truck and a conflict with another employee.

The “last issue” leading to Leady’s termination, according to the letter, was because “(during) the monitoring of other drivers, Gary was found not at home all day but running around and then found at another towing company”.

“He wasn’t trustworthy. That was a problem,” Matos said. “We couldn’t trust him with anything.”

Leady, who disputes the other reasons for his firing, argues it was improper for the towing company to monitor his movements by GPS after excusing him from work that day.

“If you’re on your personal time, not on the clock or even doing anything for the company, it shouldn’t be looked at one bit,” Leady said.

Leady confirms he knew the mobile app was sharing his location with others.

When users install the Towbook app on their mobile phones, they must grant permission for the app to track the device via GPS.

“Towbook needs your location to provide real-time information to managers and dispatchers and accurate ETAs to Motor Clubs”, a message on the Apple iPhone version of the app states.

Users must then decide whether to allow location tracking by selecting either “allow once,” “allow while using app” or “don’t allow.”

Similar notices may help protect employers from invasion of privacy claims, McAllister said.

“If you consent [to tracking], you’ve ruled out any reasonable expectation of privacy that you might have,” McAllister said. “But is your consent valid? Is it voluntary, or is it coerced? There are some courts that say that when you are given no choice by your employer, that that is not meaningful consent.”

Leady claims he was required to always keep the Towbook app open on his phone in case the company dispatched him to a towing job after hours, and he said he was prohibited from turning off the GPS tracking features in his phone’s privacy settings.

“If we’re going to drive those trucks and be employed, we have to be able to be seen where we’re at,” Leady said.

Employees of Aces Towing insist there was no such requirement, noting that company-owned tow trucks have separate GPS tracking devices that can be used to manage the fleet if drivers are not logged into the Towbook app on their personal phones.

“There is nothing in our handbook or said to [drivers] that they’re forbidden from turning that tracker off,” said Griner, who claimed Leady routinely de-activated the Towbook app on his days off.

“If you want to leave it on, leave it on. If you want to turn it off, turn it off,” said tow truck driver Noel Rodriguez. “[Aces Towing management] can care less. If it’s your day off, they don’t track us.”

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