More Fair Labor Standards Act (“FLSA”) cases are filed annually in Florida than in any other state. Understandably, employers want to better track employee work time in order to prevent FLSA claims for unpaid overtime, or defend against them. Employers considering the use of monitoring or tracking devices, including global positioning system (“GPS”) devices (on equipment such as vehicles, cellular phones, laptops, and IPADs), also want to increase efficiency, to address safety concerns, to ensure compliance with company policies, and to protect employer-owned property. They also may use such devices to improve customer service. While the decreasing costs of global positioning technologies give employers new options for keeping track of their employees and make these devices even more attractive, they also raise concerns for employee privacy.
Legality of GPS Tracking
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.
(California, Minnesota, Tennessee, and Texas are among the states that prohibit the use of mobile tracking devices to track individuals. Common exceptions to these laws include instances where consent has been obtained from the owner of the device or vehicle to which a tracking device is attached.)
Expectation of Privacy
Employers should consider whether employees have a reasonable expectation of privacy in using the equipment on which the GPS device is to be attached or installed. The employee’s expectation of privacy must be balanced against the reasonableness of the intrusion upon that privacy (i.e., being tracked by the employer) and the employer’s legitimate business purpose for utilizing the tracking device.
These considerations are particularly important where the device is attached to an employee’s personal property or to company-owned equipment that the employee uses or transports after work hours and the tracking system continues to record such after-hour usage.
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. This may occur when the device tracks non-work time (such as during the evenings, weekends, and when the employee is on vacation), when the employer may gain private information about an employee. For example, an employer may find out that each day after work an employee travels to a dialysis center or attends particular religious services. 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 (such claims are permitted under New York state law).
Legitimate Business Purposes
Information an employer collects through GPS monitoring should concern an employee’s job performance. It should be disseminated only to employees who have a legitimate business reason for knowing the information.
The bottom line: Tracking should be limited to legitimate business purposes, conducted only during working hours, and done only after the company has addressed the employee’s expectations of privacy. Policies should be drafted carefully to explain the legitimate business purpose for monitoring and the circumstances under which monitoring will take place. They should provide notice of the company’s right to monitor employee actions 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.
For employee-owned equipment, employers should consider a well-crafted Bring-Your-Own-Device policy. It should require employee consent for the use of the tracking device on the employee’s equipment, which should be activated only while the employee is working.