As shifting privacy lines allow employers to reach further and further into employee conduct, it is increasingly important for employers to know their legal limits. Many employees will question the legality of increased employer monitoring of off-site conduct, especially when employees are off-duty. Such monitoring may include the use of Global Positioning System tracking and video surveillance as well as reprimanding employees for things like speeding tickets. These practices may be within employers' legal rights, but managers need to be aware of what is and is not permissible from a legal perspective.
Monitoring On the Clock
One of the most debated employee monitoring practices involves
GPS tracking of company-owned and personal automobiles and
cellphones. GPS tracking is often used by employers to monitor
employee travel routes and to verify that work time is being
accurately recorded. Employers sometimes suspect their employees
are being less productive than they should, and this may be with
good reason. According to a 2013 online survey by salary.com, 69
percent of U.S. workers polled said they waste time everyday when
they are supposed to be working.
However, employers should not put GPS programs into motion before
taking note of potential pitfalls. When adopting such programs,
employers should be able to demonstrate there is a legitimate
business rationale behind the decision, such as:
- trying to improve response time and efficiency of routes;
- maintaining accurate timekeeping records; and
- increasing safety and/or productivity and helping to prevent theft.
While this is a good start, there is certainly more required.
Employers should also be sure they understand relevant state laws.
For example, Texas allows employers to monitor GPS systems in any
company-issued vehicle or cellphone. But, if employers wish to
monitor employee-owned vehicles, they must first receive permission
from the employee. It is recommended that employers provide clear
notice to employees before implementing GPS tracking in order to
avoid privacy (and other) lawsuits. One important practice is to
implement a policy stating that there should be no expectation of
privacy when using company-owned equipment and/or vehicles.
Moreover, whether monitoring company-owned property or even
employee-owned equipment that is used for work, employers should
limit GPS monitoring to work hours and activities. Otherwise, they
could potentially gain access to private information, such as facts
concerning medical appointments or other purely personal
activities.
Going beyond using GPS systems, Conway Services Heating, Cooling
& Plumbing installed dash cameras in each of its company-owned
vehicles. While some people might view this as overly intrusive,
this practice may nonetheless be reasonable to combat
"distracted driving." Those engaging in texting, talking
on the phone or similar distractions while driving are, according
to a 2013 study conducted by Virginia Tech Transportation
Institute, three times more likely to be involved in a vehicular
accident.
In 2010, the U.S. Occupational Safety and Health Administration
issued a letter to all employers stating that it is their
"responsibility and legal obligation to create and maintain a
safe and healthful workplace, and that would include having a
clear, unequivocal and enforced policy against the hazard of
texting while driving." OSHA goes on to say that any company
requiring or encouraging employees to text while driving is in
clear violation of the Occupational Safety and Health Act.
Accordingly, OSHA urges employers to create and enforce policies
that prevent distracted driving. Employers are able to enforce
these policies while employees are on the clock, and also when
employees are engaging in any work activity, such as talking to
supervisors or clients, despite the time.
Monitoring Off the Clock
Policies allowing employers to monitor employees outside of
their customary work locations raise questions as to how far
employers may also go when arguably monitoring off-duty
activity.
Consider this: Can an off-duty employee who receives a speeding
ticket while dropping off her child at soccer practice be punished
by her employer? The answer is yes. Does it matter if she is in her
personal car? No, it does not. In fact, AT&T Inc. has a policy
stating that employees who use a car in the course and scope of
employment must report all moving violations to a supervisor. If
they receive three or more moving violations in three years, they
become subject to possible termination. Halliburton Co. has a
similar policy.
Before implementing policies that may affect off-duty conduct,
employers should review state and federal laws. Some states have
laws that protect broad categories of off-duty conduct, or require
that an employer demonstrate there is a connection between the
employee's engagement in an activity and the employer's
business before allowing the employer to take adverse action
against the employee for engaging in that conduct.
For example, in Colorado, it is illegal for an employer to
terminate an employee because that employee engaged in any lawful
activity off the employer's premises during nonworking hours,
unless the restriction: (1) relates to a bona fide occupational
requirement or is reasonably and rationally related to the
employee's employment activities and responsibilities; or (2)
is necessary to avoid or prevent the appearance of a conflict of
interest with any of the employee's responsibilities to the
employer.
In Montana, employers are prohibited from refusing to hire job
applicants, disciplining employees, or discharging employees for
using "lawful consumable products," such as tobacco or
alcohol, if the products are used away from the employer's
premises outside of work hours, with certain exceptions for bona
fide occupational requirements or a conflict of interest, similar
to those covered by Colorado's law.
Texas, unlike 31 other states, does not currently have any off-duty
conduct laws. For now, Texas employers need only comply with
federal law. In addition to commonly known federal protections,
off-duty social media use may be protected. As many employers have
learned the hard way, the National Labor Relations Board may
restrict an employer's right to terminate an employee for
posting disparaging comments on social media. Employers also may
violate NLRB rules by maintaining overbroad social media policies
if they may prevent employees from discussing their wages or other
conditions of employment.
For employers who believe they have hit a roadblock when designing
policies that reach beyond the working time, consultation with an
experienced labor and employment attorney may be a wise strategy.
Being the test case for overbroad or impermissible employee
monitoring policies may prove to be an expensive walk in the
park.
This article appeared on August 29, 2014 on Employment Law360.
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.