As a result of technological advances, employers can monitor their employees in ways that would've seemed like science fiction just a few decades ago, like via a network of Earth orbiting satellites that can track people's locations — the global positioning system (GPS).
Employers are using GPS, or geolocation technology, for a variety of reasons, from helping their companies comply with required rest and meal breaks, to aiding in the recovery of company-owned stolen vehicles, assisting in locating vehicles in the case of an accident or emergency, and more accurately assessing employee efficiency.
However, there are risks to using GPS to track employees. Before implementing a GPS tracking policy, employers should take the following steps to help minimize potential associated legal exposure.
1. Determine the business reasons for monitoring
You should be able to demonstrate that there is a legitimate business rationale behind the decision, such as increasing operational efficiencies, improving customer service, maintaining accurate timekeeping records, or improving safety.
2. Understand relevant state law and privacy statutes pertaining to GPS in the workplace
Although geolocation, or GPS monitoring, is an effective way to track the movement of company-owned vehicles and employee activities, such surveillance may raise concerns over infringement into employees' privacy.
Most courts that have addressed the issue have held that employers may use GPS tracking devices on company-owned equipment, where the employee does not have a reasonable expectation of privacy in its use. Several states prohibit the use of mobile tracking devices in employee-owned vehicles or devices without the individual's consent.
To help prevent the violation of any applicable tort law, it may be important to ensure employees know the expectations for privacy in the workplace. Employees should fully understand that they may not have the same right to privacy at work as at home.
3. Distribute your policy regarding GPS in the workplace
Policies should be drafted to carefully explain the legitimate business purpose for monitoring and the circumstances under which the monitoring will take place. They should provide notice of the company's right to monitor employee locations while the employee is using company-owned property, explain the GPS-monitoring capabilities of the company- issued property, and tell employees they should have no expectation of privacy while using the property. Such policies should also contain language notifying employees about the GPS monitoring capabilities, how the GPS devices will be used (including whether and in what circumstances they would be monitored outside of business hours), the purpose of such monitoring, and the extent to which information obtained from monitoring could be disclosed. After a well-crafted policy has been written and reviewed for compliance with applicable laws by an attorney, distribute the policy and obtain written authorization from employees that they have received and understand it.
4. Send a notice from leadership
Provide clear notice to employees before implementing GPS tracking. Straightforward communication explaining the business reason can help avoid employees feeling like "big brother" is watching over them and may also help to mitigate any employee morale issues.
5. Additional considerations
Limit location tracking to working hours. The pattern of location data should not reveal details of the employee's private life. Tracking an employee during non-work hours can invade the employee's privacy, whether the tracking is done on employer-owned or employee-owned equipment. Not only can obtaining and acting upon information about off-duty conduct lead to employee invasion of privacy claims, it also may result in discrimination or wrongful termination allegations. If the data received from location tracking reveals details of an employee's personal life, employers should not review it, or should be prepared to show that they have a legitimate business justification for looking at this type of information. Limit access to the GPS tracking information to company personnel who have a clear business need to know that information.
The bottom line: Tracking should be limited to jurisdictions where it is permitted, used only for legitimate business purposes, conducted only during working hours, and only done after the company has addressed the employee's expectations of privacy and consulted with legal counsel.