United States: There's An App For That: Considerations In Employee GPS Monitoring

Seyfarth Synopsis: With the availability of new vehicle GPS devices and smart phone tracking applications, employers need to be mindful of employee privacy rights when using location technologies in the workplace.

It Doesn't Take A Magellan To Map Routes Anymore

Employers now have available the technology that concerned parents of wayward teenagers have often wished for. Thanks to technological advances, one can now monitor another's movements in ways that could only be imagined a couple of decades ago.

The benefits of tracking employee activity through GPS (Global Positioning Systems) include: (i) verifying routes and locations for mobile employees, particularly in the transportation or delivery industry, (ii) ensuring that employees are not violating traffic laws, (iii) monitoring employee overtime, (iv) verifying that employee time records are accurate, (v) locating company-owned stolen vehicles, and (vi) verifying that employees are not misusing company vehicles by, for example, driving to inappropriate locations or at inappropriate times.

With the advent of GPS smart phone applications, companies have begun to install GPS tracking apps on company-issued smart phones, which monitor not only the employees' transportation in vehicles, but may allow for out-of-vehicle monitoring as well.

So with all of this great new technology, where (if at all) must employers draw the line when it comes to tracking employee mobility?

Navigating The Nexus of Privacy and Employer Needs

At the center of the debate on the lawfulness of tracking employees via GPS is the employee's right to privacy vs. the employer's need for productivity and business-related information. California has a strong tradition of protecting individual privacy rights. Article I, Section 1 of the California Constitution provides that "all people" have an inalienable right of privacy. This provision applies to private as well as public employers. California employers thus must be wary of infringing on employee privacy by learning too much about private time and lawful off-duty activities.

Litigation Beginning To Moovit Related To GPS Tracking

Of major importance is whether the GPS tracking information is related to job performance: if it is not, then cataloging off-duty activities may violate constitutional rights to privacy. Consider this recent cautionary tale: In Arias v. Intermex Wire Transfer, an employee sued her former employer, claiming she was fired for uninstalling a GPS tracking app from a company-issued smart phone that was tracking her movements even when she was off the clock. The employee objected to being tracked on her own time and compared the GPS to the ankle bracelet placed on someone under house arrest. She sued for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other claims, seeking over $500,000 in damages. This suit, privately settled, is likely not the last of its kind.

An additional source of legal restriction on remote employee monitoring is California Penal Code section 637.7, which prohibits the use of "an electronic tracking device to determine the location or movement of a person" via a "vehicle or other moveable thing" unless "the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle." So while an employer arguably can install GPS tracking on company-owned vehicles, and even on employee-owned vehicles used for work purposes (with advance consent as we've blogged previously), there is currently no such carve-out allowing employers to require GPS tracking through smart phones.

In What Waze Should Employers Be Mindful About Using GPS?

A California employer using GPS to monitor employees should have policies carefully considering employee privacy issues. As with other kinds of workplace monitoring (e.g., cameras in the workplace, use of email and Internet systems), we recommend (a) full disclosure to employees, and (b) obtaining employee consent, including implementing a separate GPS tracking policy. The policy should:

  • Outline the legitimate business reasons for using GPS tracking (e.g., increasing operational efficiencies, improving customer service, maintaining accurate timekeeping records, improving safety).
  • Provide clear notice of the company's right to monitor employee locations while the employee is using company-owned property, describe when and how employees should expect to be monitored, and tell employees they should have no expectation of privacy while using the company property.
  • Explain how the employer will use and safeguard data collected.
  • Notify the employee of the consequences that could lead to discipline for disabling a GPS device without the employer's permission.
  • Communicate the policy to all employees, and have them provide written acknowledgement of their receipt and understanding of the policy.

Other best practices to consider include:

  • Limit monitoring of activity to work hours, and monitor an employee's location only for a specific business purpose in compliance with the GPS tracking policy. The collected data should not reveal details of the employee's private life.
  • Limit access to the GPS tracking information to company personnel who have a clear business need to know that information.
  • Make sure that you store any GPS-related data securely.
  • Where employees are unionized, consider whether there is a duty to bargain before implementing the use of GPS tracking, depending on the language of the contract and the parties' course of dealing. The NLRB has advised that a complaint would issue when an employer failed to bargain before unilaterally implementing a vehicle data recorder system to monitor employee compliance with driver safety rules.

Workplace Solution: Because this area of law is still developing as new technologies emerge, employers should continually revisit their GPS policies for compliance. We monitor developments in this area and will provide our readers with further information as it becomes available. In the meantime, if you have any questions, please contact the author or your favorite Seyfarth attorney.

Edited by Coby M. Turner.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.