Seyfarth Synopsis: With the availability of new vehicle GPS devices and smart phone tracking applications, employers need to be mindful of employee privacy rights when using location technologies in the workplace.
It Doesn’t Take A Magellan To Map Routes Anymore
Employers now have available the technology that concerned parents of wayward teenagers have often wished for. Thanks to technological advances, one can now monitor another’s movements in ways that could only be imagined a couple of decades ago.
The benefits of tracking employee activity through GPS (Global Positioning Systems) include: (i) verifying routes and locations for mobile employees, particularly in the transportation or delivery industry, (ii) ensuring that employees are not violating traffic laws, (iii) monitoring employee overtime, (iv) verifying that employee time records are accurate, (v) locating company-owned stolen vehicles, and (vi) verifying that employees are not misusing company vehicles by, for example, driving to inappropriate locations or at inappropriate times.
With the advent of GPS smart phone applications, companies have begun to install GPS tracking apps on company-issued smart phones, which monitor not only the employees’ transportation in vehicles, but may allow for out-of-vehicle monitoring as well.
So with all of this great new technology, where (if at all) must employers draw the line when it comes to tracking employee mobility?
Navigating The Nexus of Privacy and Employer Needs
At the center of the debate on the lawfulness of tracking employees via GPS is the employee’s right to privacy vs. the employer’s need for productivity and business-related information. California has a strong tradition of protecting individual privacy rights. Article I, Section 1 of the California Constitution provides that “all people” have an inalienable right of privacy. This provision applies to private as well as public employers. California employers thus must be wary of infringing on employee privacy by learning too much about private time and lawful off-duty activities.
Litigation Beginning To Moovit Related To GPS Tracking
Of major importance is whether the GPS tracking information is related to job performance: if it is not, then cataloging off-duty activities may violate constitutional rights to privacy. Consider this recent cautionary tale: In Arias v. Intermex Wire Transfer, an employee sued her former employer, claiming she was fired for uninstalling a GPS tracking app from a company-issued smart phone that was tracking her movements even when she was off the clock. The employee objected to being tracked on her own time and compared the GPS to the ankle bracelet placed on someone under house arrest. She sued for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other claims, seeking over $500,000 in damages. This suit, privately settled, is likely not the last of its kind.
An additional source of legal restriction on remote employee monitoring is California Penal Code section 637.7, which prohibits the use of “an electronic tracking device to determine the location or movement of a person” via a “vehicle or other moveable thing” unless “the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” So while an employer arguably can install GPS tracking on company-owned vehicles, and even on employee-owned vehicles used for work purposes (with advance consent as we’ve blogged previously), there is currently no such carve-out allowing employers to require GPS tracking through smart phones.
In What Waze Should Employers Be Mindful About Using GPS?
A California employer using GPS to monitor employees should have policies carefully considering employee privacy issues. As with other kinds of workplace monitoring (e.g., cameras in the workplace, use of email and Internet systems), we recommend (a) full disclosure to employees, and (b) obtaining employee consent, including implementing a separate GPS tracking policy. The policy should:
- Outline the legitimate business reasons for using GPS tracking (e.g., increasing operational efficiencies, improving customer service, maintaining accurate timekeeping records, improving safety).
- Provide clear notice of the company’s right to monitor employee locations while the employee is using company-owned property, describe when and how employees should expect to be monitored, and tell employees they should have no expectation of privacy while using the company property.
- Explain how the employer will use and safeguard data collected.
- Notify the employee of the consequences that could lead to discipline for disabling a GPS device without the employer’s permission.
- Communicate the policy to all employees, and have them provide written acknowledgement of their receipt and understanding of the policy.
Other best practices to consider include:
- Limit monitoring of activity to work hours, and monitor an employee’s location only for a specific business purpose in compliance with the GPS tracking policy. The collected data should not reveal details of the employee’s private life.
- Limit access to the GPS tracking information to company personnel who have a clear business need to know that information.
- Make sure that you store any GPS-related data securely.
- Where employees are unionized, consider whether there is a duty to bargain before implementing the use of GPS tracking, depending on the language of the contract and the parties’ course of dealing. The NLRB has advised that a complaint would issue when an employer failed to bargain before unilaterally implementing a vehicle data recorder system to monitor employee compliance with driver safety rules.
Workplace Solution: Because this area of law is still developing as new technologies emerge, employers should continually revisit their GPS policies for compliance. We monitor developments in this area and will provide our readers with further information as it becomes available.