Wait…. What?

Yes, in Shore Point Distribution Co., Inc., the NLRB’s General Counsel’s Office issued an Advice Memorandum yesterday (dated October 15, 2015) in which it stated that an employer did not violate Section 8(a)(5) of the National Labor Relations Act by failing to bargain with union before installing a GPS device on an employee’s truck.

In March 2015, the employer became concerned that one of its employees was taking more time than other drivers to complete the same routes. It therefore hired a private investigator to follow and videotape the driver on his routes. The employer placed a GPS device on the employee’s truck to ensure that the investigator would be able to regain contact with the truck if he lost visual contact during the course of the surveillance. Over the course of his surveillance of the employee, the investigator personally observed the employee engaging in work rule violations including operating his truck in an unsafe and illegal manner, failing to follow specified delivery times, stealing time, and falsifying his daily log. Finally, after the GPS located the employee stopped in the employee’s hometown, he located the employee’s truck parked in the driveway at his home during work hours. Thereafter, the employer terminated the employee based on the investigator’s report. There is no indication that the employee was ever aware that the GPS device had been installed on his truck or that the employer had notified its employees that it might use GPS tracking for any reason in association with their employment.

Hard to see the NLRB’s General Counsel going along with this. Obviously, there are some other facts at play here.

First, the collective bargaining agreement contained work rules that prohibited drivers from “stealing time” and requiring that they adhere to Department of Transportation regulations mandating that drivers accurately account for their time on daily log records.

Second, the employer “has a practice of retaining a private investigator to follow an employee suspected of stealing time and using any results obtained through the investigator’s personal observations for disciplinary purposes.” The union was aware of this practice and “has no objection to it.”

Based on these facts, the General Counsel easily concluded that an employer’s use of GPS was a mandatory subject of bargaining, but, analogizing to cases in which the Board permitted employers using video cameras to uncover workers’ compensation fraud and substituting time clocks for manual notations to record work time, additionally concluded that the use of GPS devices to assist in tracking employee location did not constitute a “material, substantial, and significant” change in employees’ terms and conditions of employment. Therefore, the General Counsel concluded that the employer was free to unilaterally make this change.

Critical to the General Counsel’s analysis in this case was his finding that the employer already had an established practice of following employees it suspected of stealing time and that the GPS merely was a more technological way of enforcing that established policy. In addition, the General Counsel noted that there was no evidence that any of the information obtained from the GPS was used in disciplining the employee that was independent of the investigator’s personal observations.

Takeaways for employers

Whether it relates to workforce productivity or investigating misconduct, many employers have substantial legitimate reasons for using GPS devices to monitor their employees’ location. Generally speaking, despite the Shore Point NLRB Advice Memorandum which seems to rest on rather unique facts, employers should not unilaterally initiate a practice of installing GPS devices on its employees’ work vehicles without first bargaining with any existing union or, in a non-unionized setting, providing advance notice to employees of the practice. In addition, employers that do use GPS tracking devices should ensure that appropriate steps are taken to ensure that those devices are used only in a manner that is consistent with the employer’s legitimate needs and protects the employees’ expectation of privacy away from work.