GPS Tracking: Employee Surveillance or Unlawful Spying?
Michael W. Kulakowski, Esq. |
Common HR Questions
Has your organization considered implementing GPS technology to track employee movement and/or monitor use of company vehicles? If so, you’re not alone. GPS tracking is a hot topic in terms of surveillance and privacy, and with good reason. With the widespread increase of telecommuting, dispersed workforces, and reliance on technology to perform essential job functions, many employers consider using GPS tracking to monitor workforce activity, movement, and investigate misconduct.
But how do you strike the appropriate balance between legally protecting both your rightful interests as an employer and the privacy of your employees? MEA is here to help answer that question.
Many of our members turn to MEA’s Employers’ Hotline for guidance and clarity on the topic of GPS tracking as a form of surveillance. This month’s hotline exchange examines the key legal considerations and privacy issues surrounding this relatively new workplace practice.
Member: We suspect that one of our employees drives to a local park while he’s on the clock getting paid, instead of making house calls as required. We think he goes there to take a nap, but who knows. In any event, we want to install GPS technology to confirm our suspicion. Is this legal?
MEA Expert: Thank you for contacting us for guidance. To answer your question, yes, the use of GPS technology to track employees’ locations and movements is legally permitted. However, it’s only legally permitted under the right circumstances. Unlike traditional forms of surveillance, GPS can be particularly intrusive because of the amount of detail and data that are tracked, and the possibility of intruding into an employee’s private life (e.g., an employee’s use of a company vehicle may disclose movements during non-business personal time).
Accordingly, tracking employee movements raises significant privacy concerns which could result in legal liability if employers are not careful. In addition to potentially getting into legal hot water, attempting to implement GPS monitoring programs can often result in significant pushback from employees as well.
Member: If we do decide to implement a GPS tracking program, what precautions should I take to make sure that I’m upholding the law and acting within my rights?
MEA Expert: That’s a good question. Since GPS is a rather new workplace practice, there is limited case law directly addressing an employer’s right to use GPS to monitor its workforce. While at least one court has found that the placement of a GPS device in a vehicle provided by an employer is not an unreasonable intrusion of employee privacy, the case outlines certain precautions employers must take in order to avoid claims for tortious invasion of privacy; including all of the following:
- Notify employees that they are subject to monitoring if they use company-issued property installed with GPS (including in vehicles, in cell phones, etc.)
- Inform employees that they should have “no expectation of privacy” as to their location and whereabouts when using company property installed with GPS.
- Obtain the written consent of each employee to be monitored by GPS on company-issued devices.
- To the greatest extent practicable, limit monitoring to working hours in order to avoid intruding on employees’ personal lives and out-of-work conduct.
Moreover, both union and nonunionized employers may be subject to claims that monitoring with GPS infringes on employee rights to engage in protected concerted activity under the NLRA (e.g., terminating an employee for visiting a union hall off hours). Separately, the terms of a collective bargaining agreement may prohibit such monitoring. Be sure to understand these issues before moving forward.
Member: There is certainly a lot to consider here. Is GPS surveillance really necessary, or is the risk greater than the potential reward?
MEA Expert: That’s another legitimate question and one that would require you to carefully examine your organization’s specific needs. Too often, employers are quick to embrace technology that purports to increase productivity, but they should consider the risks associated with a GPS surveillance program. That said, it would be prudent for you to decide whether GPS surveillance is truly necessary by considering the reasons your employees must be closely monitored, such as because it would minimize or eliminate safety risks to which your workforce is routinely exposed.
Member: You mentioned earlier that employee pushback is a potential concern. Will GPS surveillance impact employee morale?
MEA Expert: One drawback to using GPS tracking is that employees may interpret the practice as an expression of mistrust. Others may become defensive and work less effectively knowing that their every move is being watched. Employers should not discount the potential adverse impact on employee morale, and the possible souring of employee relations.
Member: If we do decide to implement the program, should we communicate it to our employees?
MEA Expert: Absolutely. Transparency is critical here. From an employee-relations standpoint, the biggest pitfall is failure to properly communicate with employees about the program. Employers that implement monitoring programs should consider communicating directly with employees before surveillance begins, and explain to them: (1) the purposes of monitoring; (2) how monitoring will be conducted; (3) who will be privy to the data; and (4) how the data will be used.
Member: Do I have to provide specific details about the GPS monitoring policy when communicating it to my employees?
MEA Expert: You should disclose and explain to employees the logistics of the monitoring program to foster trust and encourage communication. A GPS surveillance program is only effective if it functions as intended, allowing an employer to monitor and locate employees as necessary for business purposes. However, most GPS-capable devices, such as cell phones, have limitations. A phone’s GPS functionality may be disabled or an employee may turn her phone off completely except for limited times such as when making calls or checking voice-mail.
Accordingly, details about the program should be made clear, including the times during which employees are expected to carry GPS-enabled tracking devices, and the times during which employees may (or must) deactivate such devices. The policy should also clearly explain the disciplinary consequences of disabling a GPS device during working time.
Member: Thank you. This information is incredibly helpful. I didn’t realize that there were so many legal considerations surrounding this topic. I will review it all and decide the best course of action for my organization. If I have additional questions, may I call the hotline again?
MEA Expert: Of course. MEA takes pride in helping your organization to establish good policies and practices to not only facilitate legal compliance, but also enhance your employees’ wellbeing. This is especially important when it comes to safeguarding their right to privacy. Contact us anytime – we’re always a phone call away.
MEA’s goal is to provide current, detailed and useful information to hotline callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business.