It’s 2:35 p.m. Do You Know (Or Care) Where Your Employees Are?

Today, technological advances make it easier for companies to track exactly where their products are at any given time. These same advances have given employers a similar opportunity to track their employees. Global positioning system (GPS) tracking software is now not only available for vehicles, but also for cell phones, smart phones, iPads, and other devices, allowing employers to effectively track their employees both during and after work hours. The question that increasingly presents itself is: “What are the limits—legally—to this type of employee tracking?”

Some states have enacted statutes that specifically address electronic tracking of employees, which usually contain both prohibitions and allowed exceptions. For example, California has enacted a statute that criminalizes the use of an electronic tracking device to determine the location or movement of a person without his or her consent. However, there is an exception to the consent requirement if the vehicle is owned or leased by the employer. A Connecticut statute requires employers to give prior written notice to all employees whom they may monitor electronically to inform them what type of monitoring may occur. However, the statute permits an employer to forego providing such notice if it reasonably suspects that an employee is engaged in unlawful behavior, and the employer believes that it can obtain evidence of the behavior through monitoring.

Other states, including Illinois, California, New York, Colorado, and North Dakota, have enacted laws that protect employee conduct outside of work. For example, New York employers are prohibited from discharging or discriminating against employees for certain lawful activities outside the workplace. The New York law contains some exceptions (including when the employer takes actions under the belief that such action is required by law or permitted by the employer’s policy and when the employee’s actions are illegal or constitute poor performance, incompetency, or misconduct) but is otherwise quite sweeping.

Also, all states have some form of common law privacy tort, each with its own varied requirements and elements of proof. Generally, when dealing with GPS tracking of employees, the most common claim would be one for unreasonable intrusion upon the seclusion or solitude of an employee. The issue of an employee’s reasonable expectation of privacy is usually the tipping point for these common law claims. While there are many benefits to using GPS systems to track employees, employers also face many legal pitfalls when engaging in such tracking. However, while risk cannot be completely averted, it can certainly be greatly reduced by careful planning and implementation of GPS tracking policies. First, while it may be unnecessary in some states, it is highly recommended that the monitoring of GPS tracking devices be limited to working hours. Many common law privacy cases come down to a weighing of the benefits for the employer versus the privacy rights of the employee. If GPS tracking is monitored during non-working hours, employers will find it hard to prove that the benefits to such off-duty monitoring outweigh the employee’s privacy rights. Further, if an employer desires to track its employees who are on leave, there normally should be a reasonable suspicion that such tracking is necessary for a business purpose. It is important and highly recommended that employers document evidence that leads to this suspicion.

It is equally important that employers make clear to their employees that there is no reasonable expectation of privacy in their use of the equipment that is being used to track employee movements. Further, employers should give notice to their employees regarding any tracking being performed through GPS systems installed in company equipment. Meanwhile, employers must take the time to carefully consider who is being tracked. Employers should have a valid, job-related reason for tracking an employee. This can be as simple as the need to track company property or to allow for tracking deliverables to a customer. Finally, it is important for employers to set limits and expectations for employee use of company property. Employers should make clear that certain establishments should not be visited during working hours and company property is to be used only for business reasons. Providing policies that clearly set forth the employer’s expectations and what activities warrant discipline and discharge will allow employers to avoid confusion and minimize the risks of litigation.

Advancements in GPS tracking allow employers the opportunity to know where their employees are at virtually any time of the day. The question for employers is whether and to what extent such tracking is best for them. While GPS tracking of employees can be beneficial to employers, employers must be aware of the legal risks involved and properly plan and implement such tracking policies to avoid the same.