The answer is “yes” – tracking employees by
using Global Positioning Systems (GPS) can give an employer too
much information (TMI). Surreptitious Surveillance
In 2012, the U.S. Supreme Court held (in the case of U.S. v.
Jones) that the government’s attachment of a
GPS device 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) that attached a GPS to the car of an employee 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. (Cunningham
v. NY Dept. of Labor). In the Cunningham case, the
New York Labor Department 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 the
employer 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 state Labor Department’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.
In Tennessee, for example, 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 for the purpose of monitoring or following
an occupant or occupants of the vehicle without the consent of all
owners of the vehicle.
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.
But employees have concerns 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 smart phones? 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?
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 your company’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.
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.