Tuesday, March 30, 2010

Employment Law Considerations: Employee Use of Geolocation Services

Social media asking users, “What are you doing?” That’s so 2009.

Now, social media asks, “Where are you?”

Geolocation services like Foursquare and Gowalla allow users to check in to (or otherwise share) their locations by using GPS- and web-enabled phones, iPods, or other electronic devices. These sites usually incorporate elements of both social networking and gaming: users may connect with one another, but they also compete to earn points, discounts, titles (i.e., the “Mayor” of X or Y bar might get free beer), badges, etc. These sites often incorporate a user-review-esque quality, too, allowing users to make recommendations for their favorite locations. Of course, sites like this may also potentially boost the local economy, and offer users tips and suggestions for other nearby businesses. Foursquare, for example, explains it “will keep track of the things you’ve done, help you create To-Do lists and even suggest new experiences to seek out.”

Similarly, earlier this month, Twitter rolled out its “Tweet With Your Location” feature that lets users add location information to their Tweets (this function defaults to “off” and must be enabled by the user).

These sites report not only where a user is, but may also say why, when, how often, and with whom . . .

For the same reasons more and more employers are checking employee and candidate’s Facebook profiles, LinkedIn connections, and Tweets, employers may also want to see what their employees are up to on these geolocation sites.

It’s not unusual for an employer to monitor an employee’s or candidate’s online presence. Earlier posts touched upon some issues employers may want to consider when using social media to investigate candidates during the hiring process or before disciplining current employees based on their online activities.

These and similar issues may be implicated when employers look up an employee’s online geolocation information or profile as well.

Remember that, for the most part, the same old traditional rules apply. The key becomes identifying (sometimes predicting) how they apply, or may be implicated, in the ever-changing context of online media.

For example, did Employee Eddy lie about missing work last Friday because of a head cold? Maybe Foursquare reports that he “checked in” at the local sports bar at 4 pm while his colleagues were heading to the departmental marketing meeting. Discipline may well be justified.

But different circumstances may call for different considerations. What if Eddy checked in to the bar during only off-duty hours? It’s his favorite bar, so he goes there often – and he checks in each time (he wants to become the bar’s “Mayor” after all!). Supervisor Sam sees Eddy visits the bar regularly, and he wants to fire Eddy just because he thinks the frequent weeknight trips to the bar reflect poorly on his character. What if it happened to be a gay bar (in some states, including Iowa, sexual orientation is a protected class)? Did Supervisor Sam bother to look at the beer bong pictures posted on Facebook by other employees?

Such common use of GPS-based technology and other geolocation services is new enough that there’s little to no legal authority directly on point. The New York Court of Appeals, however, offers the following insightful commentary (although this arose in the context of a criminal case, it wonderfully articulates some points employers and employment lawyers may wish to consider):
“The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations – political, religious, amicable and amorous, to name only a few – and of the pattern of our professional and avocational pursuits. . . . And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons-to mention just a few of the highly feasible empirical configurations.”
- People v. Weaver, 909 N.E.2d 1195, 1199-1200 (N.Y. 2009)

For more information on the various geolocation services and sites out there, Daniel Ionescu provides a nice summary of the various services in this PCWorld article that ran yesterday.

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