Can Employers Obtain Cell Phone GPS Data In Unpaid Overtime Case?

Posted on February 8, 2017
Virginia Employer Law Blog

the situation

You operate a company in which employees frequently use personal cell phones for work reasons.  A group of employees joins together and files a collective action, asserting that you failed to pay them overtime as required under the FLSA.  You want to get ahold of GPS and location services from their cell phones to support your suspicion that these employees were not really working during all the hours they now claim.  Can you get this information?

the ruling

In a recent decision, a federal court in Indiana found that an employer could not get this type of information, based on the employees’ privacy rights in this information and the fact that this information could be obtained through less intrusive means.  Crabtree, et al. v. Angie’s List, Inc., Case No. 1:15-cv-00877 (S.D. Ind. January 31, 2017).

The plaintiffs in this case were senior sales representatives for Angie’s List.  As senior sales representatives, the plaintiffs finalized sales with service providers for advertisements on the Angie’s List website, doing much of their work over the phone.  Angie’s List did not provide cell phones or laptops and so these employees often used their own personal electronic devices for work purposes.  The plaintiffs asserted a claim under the FLSA, claiming that Angie’s List only paid them for a 40 hour workweek despite the fact that they worked between 10 and 12 hours per weekday.  Through discovery, Angie’s List sought to obtain GPS and location services data for a year from the employees’ personal cell phones for the purposes of figuring out when the employees were actually working.   The plaintiffs objected, claiming that this type of request posed privacy concerns that the GPS data wouldn’t really show whether they were working at any given time, and that Angie’s List had other less intrusive ways of identifying times when they were working.

The court ended up agreeing with the plaintiffs and denied Angie’s List’s motion to compel this information.  The court pointed to the federal rules related to discovery and related guidance which advise courts to be careful when evaluating requests to inspect electronic devices or systems for electronically stored information in order to avoid unduly impinging on a party’s privacy interests.  In this case, Angie’s List already had access to data that would show when the plaintiffs were logged into its system and also had data that would show when the plaintiffs were at the office (including badge swipe data and log in data from their work computers).    Although Angie’s List argued that the GPS data would show whether the employees had left for the day, left for lunch or some other break during times when they were still logged on to the system, because the plaintiffs were expected to work outside of the office, the fact that the phones  left the building would not provide any information as too whether the plaintiffs were not actually working. Also, the plaintiffs had already provided cell phone records, which was not nearly as intrusive as GPS data that would track every location of each plaintiff every day of the year.  Under all of these circumstances, the court found that Angie’s List’s request for a forensic examination of the plaintiff’s electronic devices was not proportional to the needs of the case as any potential benefit the data sought would provide was outweighed by the privacy interests of the plaintiffs.

the point

Most employers are sure to inform employees about limitations on their privacy interests when they use company cell phones or other company owned electronic devices.  But the privacy interests may be viewed differently when employees use their own personal devices for work purposes.  The question of what type of electronically stored information can be obtained during discovery is a tricky one—and undoubtedly fact-dependent.   This case highlights the limitations that might be imposed when an employer overreaches and the privacy interests of employees that very well may be taken into consideration by a court in this type of case.

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