Using GPS or smart phone apps to monitor employee activity
September 22, 2016
By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE
As technology continues to evolve at a dizzying speed, it has provided employees with immense amounts of flexibility and mobility when it comes to the ability to perform work outside the office. Technology also gives employers the ability to track all sorts of information on their employees through the use of Global Positioning Systems (GPS) devices installed in vehicles, laptops or through apps installed in smartphones and tablets used by employees.
The benefits of using GPS tracking are numerous and include reasons such as monitoring work hours for compliance with wage and hour laws; safety reasons including monitoring traffic laws; monitoring travel and work patterns for efficiency, productivity and performance; protections of company owned property; and using it for internal investigations. While there are many benefits for tracking employee activity, employers must be careful to use it correctly in order to avoid legal ramifications from improperly using information gathered from these systems.
Currently there is no federal statute that directly regulates an employer’s use of GPS to monitor their employees, though employers should become familiar with federal and state laws that recognize an employee’s right to some degree of privacy in the workplace. States such as California, Minnesota, Tennessee, and Texas require consent in order to use a GPS tracking device.
Courts have generally upheld an employer’s right to monitor their employees through the use of GPS and other tracking devices on company owned equipment where an employee does not have any reasonable expectation of privacy during its use. Legal risk of invasion of privacy claims dramatically increase when GPS monitoring is used on personal property or when monitoring occurs outside of work hours.
A New York state court held that installing a GPS device on an employee owned vehicle was unreasonable. Tracking employees outside of works hours, whether using company owned or personally owned equipment, gains access to unneeded personal information. In addition to invasion of privacy concerns, employers could become aware of information related to an employee’s medical treatment appointments, religious service schedules and other personal information that could later generate claims of discrimination or wrongful termination based on off-duty conduct.
When it comes to implementing an employee GPS tracking program, best practice guidelines include:
- Ensure that there is a legitimate business need to justify the use GPS tracking. Tracking should be limited to working hours.
- Communicate your GPS tracking policy. It should clearly outline the business reasons for tracking employees, how and when they will be tracked, what data will be monitored, how it will be safeguarded, the employer’s right to monitor employee’s while using company owned property, and that employees have no right or expectation to privacy while using company owned property or equipment.
- Employer policies should detail whether employees will be disciplined or terminated if they disable the GPS device without permission. Employees should be aware of these consequences prior to having the technology installed.
- Information gathered from GPS devices should only be provided to those that have a business reason to know and be stored in a secure location.
- Become knowledgeable regarding privacy laws and the use of GPS tracking devices or apps in the states in which the employer operates.
- Employer expectations regarding GPS tracking should be communicated up front, and employees should acknowledge in writing that they understand the policy.
As technology continues to advance, privacy issues regarding monitoring employee activity will only continue to become more complicated. Employers should work with their legal counsel to help them develop practical and compliant monitoring policies.