GPS: It's 10:00 am. Do you know where your employees are?
GPS is great for tracking trucks and employees — just beware of these legal pitfalls.
By Tracy Moon, Jr., Fisher & Phillips LLP
Recent advances in Global Positioning Satellite (GPS) technologies makes tracking and monitoring the activities of employees while they are working away from the workplace less expensive and much easier.
While GPS technologies provide useful information to help employers ensure that employees are properly engaged in work-related activities when they are working away from the office, GPS can also provide information about non-work-related activities, and this is where problems can arise for distribution employers.
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Implementing GPS policies must be done with care to achieve a balance between protecting the legitimate business interests of the employer and the privacy |
Employer and Employee Expectations
Generally, employees expect employers to track or monitor what they do in the workplace. For example, most employees understand that what they do on their office computers is likely to be monitored by their employers. Most employees, however, do not want their employers to track or monitor what they do on their personal time.
Employees have an expectation that such information is private and feel that it is none of their employer’s business what they do on their free time. This article discusses issues related to using GPS technologies to monitor employee activities and actions employers can take to avoid running afoul of the law.
Distribution firms have many legitimate reasons for wanting to track or monitor employee activities taking place outside the workplace. They want to ensure that their employees comply with company policies and procedures, and applicable laws and government regulations. When employees use company-owned vehicles and equipment, employers want to know that they are being used for the required purposes.
In this regard, employers place GPS devices on vehicles they provide to sales, delivery and other employees whose jobs require time outside the office to ensure they are being used primarily for business and to reduce insurance-related risks. Employers also have an interest in maximizing the return on their investment in vehicles and equipment and, in this regard, find information obtained using GPS technologies useful in attaining this goal.
For example, many companies place GPS devices on delivery vehicles to obtain information useful in determining delivery and pickup times. In addition, some distribution companies use the tracking chips in electronic devices such as cellular phones, laptop computers, tablets and other mobile devices to locate them if they are stolen or lost.
Off-hours Tracking
When tracking or monitoring employee activities away from the workplace using GPS technologies, employers may receive information concerning the private and personal non-work-related activities of employees, sometimes inadvertently.
For example, employers could receive information about where employees go and what they do on weekends, evenings, vacations and holidays. Also, employers could receive information about employees attending a union meeting or about their religious preferences from information relating to the church, synagogue or mosque they attend.
Employees have concerns that their employers could use the information provided by GPS devices to take adverse employment actions against them. If an employer receives such information, there is nothing stopping an employee from filing a charge of discrimination, an unfair labor practice charge or a lawsuit claiming a violation of the employee’s right to privacy, even though it may not be true.
In any case, the employer is going to have to expend money to establish that it did not base its decision or actions on unlawful reasons.
“One Small Step”
To avoid running afoul of the law and to prevent abuse of employee tracking and monitoring technologies, distribution employers should develop, distribute and implement a policy making employees aware that their whereabouts and activities are being tracked or monitored.
To develop a clear policy, employers must first identify the legitimate business interests they are seeking to protect by using GPS technologies.
Next, employers must prepare a narrowly-tailored policy that protects their legitimate business interests while not encroaching on employee privacy during nonworking hours and activities. In this regard, one option is requiring employees to activate the technology when their workday starts and to deactivate it when their workday ends.
Employers should also include in the policy a commitment to limit the collection and use of information obtained by using GPS technologies to only that which furthers their legitimate business interests.
Get it In Writing
Finally, have all employees sign a written acknowledgment stating that they consent to the tracking or monitoring and understand the policy, which should foreclose them from later contending that unknown rules were imposed on them.
While employee tracking and monitoring with GPS may protect legitimate business interests of employers, implementing GPS policies must be done with care to achieve a balance between protecting the legitimate business interests of the employer and the privacy rights of employees.
Once a policy is implemented, it is paramount that employers take action necessary to ensure that GPS technologies are not abused, information obtained is protected from unauthorized distribution and use and the policy is uniformly
enforced to avoid claims of unlawful conduct. CS
Tracy L. Moon, Jr. is a partner in the Atlanta office of Fisher & Phillips LLP, which represents employers across the country in labor, employment, civil rights, employee benefits, OSHA and immigration matters. He can be reached at (404) 240-4246 or by
e-mail at tmoon@laborlawyers.com.
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