The answer is "yes" – tracking employees by using Global Positioning Systems can give an employer Too Much Information.
Background - Surreptitious Surveillance
In 2012, the United States Supreme Court held (in the case of
U.S. v. Jones) that the government's attachment of a Global
Positioning System (GPS) to the vehicle of an individual suspected
of drug trafficking was a "search" within the meaning of
the Fourth Amendment (which provides protection against
unreasonable searches) and thus required a warrant.
Following the Jones decision, a New York court found last year that
a public employer (ironically, the New York Department of Labor)
who attached a GPS to the car of an employee (Cunningham)
had engaged in a search; however, the New York court was of the
opinion that the Supreme Court had left open the question of when,
if ever, a GPS search was permissible without a warrant.
In the Cunningham case, the New York Department of Labor
attached a GPS to the employee's car, without the
employee's knowledge, because it suspected the employee of
submitting false time reports; naturally, the GPS seemed an
effective way to accurately determine whether the employee was at
his office during the times he claimed or, as suspected, having an
out-of-office rendezvous with his secretary.
The New York court determined that a warrant was not required,
finding that the parameters of the search fell within the
"workplace exception" previously sanctioned by the
Supreme Court. This workplace exception permits warrantless
searches by public employers in work areas where an employee would
have no reasonable expectation of privacy. Nevertheless, the New
York court found that the Department of Labor's use of the GPS
in this case was unreasonable because it tracked activity during
times in which the Department had no legitimate interest, i.e.,
evenings, weekends, and vacations (with the secretary).
One of the judges in the Cunningham case filed a separate
opinion and criticized the other judges' finding that the
installation of the GPS system was permissible without a warrant.
This judge explained that, regardless of the workplace exception,
there could be private information, outside of workplace, that
inevitably would be disclosed in the data retrieved from a GPS
placed on an employee's personal vehicle – for
example: "trips to the psychiatrist, the plastic
surgeon, the abortion clinic, the AIDS treatment center, the strip
club, the criminal defense attorney, the by-the-hour motel, the
union meeting, the mosque, synagogue or church, the gay bar and on
and on." On some matters, ignorance is bliss.
The Private Sector
While the Fourth Amendment does not apply to private employers, some states have enacted laws making it illegal for a private employer to place a location tracking device on an employee's vehicle without the employee's consent. Interestingly, a few states have even adopted legislation prohibiting employers from implanting GPS-like microchips in the form of Radio-frequency identification (RFID) under an employee's skin.
Tennessee
In Tennessee, it is a misdemeanor for anyone other than a car manufacturer, a law enforcement officer in pursuit of a criminal investigation, or a parent of a minor to "knowingly install, conceal or otherwise place an electronic tracking device in or on a motor vehicle without the consent of all owners of the vehicle for the purpose of monitoring or following an occupant or occupants of the vehicle." Tennessee Code 39-13-606.
Employer-owned Equipment
Employers have various reasons for wanting to monitor employee
whereabouts, ranging from safety concerns to ensuring compliance
with company policies and procedures. There can be legitimate uses
of tracking devices placed in company-owned vehicles. For example,
in the shipping and logistics industry, tracking a vehicle's
location may be useful to estimate and confirm delivery times. Some
trucking companies monitor the driving hours of employees to ensure
compliance with Department of Transportation regulations requiring
drivers to take breaks after driving a certain number of hours. A
driver who exceeds the permissible number of driving hours and
falsely reports his sleeping vs. driving time could be found guilty
of misconduct when faced with evidence derived from a GPS log
contradicting his reports.
Employees have concerns, however, that private information derived
from monitoring systems might influence employers when they are
making decisions about work assignments or promotions. Beyond
privacy interests, employees also are apprehensive about the
accuracy of information employers might derive from these systems.
There are concerns that GPS monitoring might make it appear that an
employee is engaging in inappropriate activity when that is not the
case. For example, an employee who has to take a detour
because of road work might be accused of taking an impermissible
side trip; or, sitting in a traffic jam could look like
idling or an impermissible stop.
What about smartphones? It follows that tracking a smartphone
can be even more intrusive than tracking a car because the employee
likely will take the smartphone into those private places
envisioned by the Cunningham judge and listed above.
How Much is Too Much?
Employers should be wary of monitoring employees without their consent for any reason. A carefully drafted Employee Handbook can serve an employer well by clearly explaining that the employee should have no expectation of privacy in company-owned equipment. Any kind of monitoring should be closely tailored to suit a particular employer's legitimate business needs and should be limited to working hours. Monitoring employees outside of these parameters will run the risk of being deemed an unreasonable invasion of employee privacy and could lead to claims of discriminatory treatment based on information inadvertently obtained and relating to private matters. In some circumstances, more knowledge is not always a good thing.
This article appeared in the February 2014 issue of HR Professionals of Greater Memphis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.