Tracking and monitoring individuals' activities is becoming
more common, largely because the technology is less expensive and
easier to use, and the information derived can be very interesting
and beneficial. The NFL recently announced it would be placing
Radio Frequency Identification tracking chips on players during
some games to generate precise positioning data. Additionally, law
enforcement has been using cell phone location technologies to
quickly find missing people. Like the NFL and law enforcement,
employers in construction and multiple other industries are using
GPS technologies to track and monitor the activities of employees
when they are working away from the office.
While GPS technologies provide employers with useful information
to ensure employees are properly engaged in appropriate
work-related activities when they are at a jobsite or otherwise
working away from the office, they also can provide information
about their non-work-related activities. This is where problems can
arise.
By and large, employees expect employers to track or monitor what
they do in the workplace. For example, most employees are aware
that their activities when using a company-owned computer are
likely being monitored. However, most employees 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
believe it is none of their employer's business.
Construction employers have many legitimate reasons for wanting to
track or monitor employee activities. Employers want to ensure that
employees comply with company policies and procedures, applicable
laws and government regulations. When employees use
company-owned vehicles and equipment, employers want to ensure they
are being used for approved work-related purposes. In this regard,
employers place GPS devices on vehicles they provide to employees
who work remotely to ensure they are being used primarily for
business and to reduce insurance-related risks. Construction
employers also have an interest in maximizing the return on their
investment in vehicles and equipment, which can be achieved through
information obtained using GPS technologies. Consequently, many
construction companies place GPS devices on delivery vehicles to
obtain information useful in determining delivery and pickup times.
In addition, some companies use the location tracking chips in
electronic devices such as cell phones, laptop computers and
tablets to find the mobile devices if they are stolen or
lost.
When tracking or monitoring employee activities away from the
workplace using GPS technologies, employers can receive information
concerning employees' private and personal non-work-related
activities (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 employers could use the information
provided by tracking and monitoring 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 show that it did not base its
decision or actions on any unlawful reason.
To avoid legal claims and to prevent abuse of employee tracking
and monitoring technologies, construction employers should develop,
distribute and implement a policy notifying employees 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.
Next, employers should draft a narrowly tailored policy that
protects their legitimate business interests while not encroaching
on the privacy of employees during non-working hours and
activities. In this regard, an option available to employers is
requiring employees to activate the tracking or monitoring device
when their workday starts and to deactivate it when their workday
ends. Employers also should include in the policy a commitment to
limit the collection and use of information obtained to only that
which furthers their legitimate business interests.
Finally, employers should obtain a written acknowledgement from
employees stating that they consent to the tracking or monitoring
and understand the policy, which should prevent them from later
contending that unknown rules were imposed on them.
The preparation and implementation of an employee tracking and
monitoring policy 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 very important that employers ensure that GPS
technologies are not abused, information obtained is protected from
unauthorized distribution and use, and the policy is uniformly
enforced to avoid legal claims.
Originally published Construction Executive.
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.