Q. Our company would like to start a program where all sales employees will use cell phones that have GPS monitoring. We want to keep track of where employees are so we can make sure they make their sales calls in their own territories and are not wasting time. Is this OK to do? Must we tell employees about the GPS monitoring? What about tracking employees after hours?
A. GPS monitoring is a new frontier in employment law. FedEx knows where your package is, so it certainly knows where some of its employees are. And the automotive companies sell devices to track your vehicle for safety reasons. Tracking employees can’t be far behind!
GPS tracking of employees does raise some privacy concerns. Michigan and many other states address privacy in terms of reasonable employee expectations. It is not uncommon to hear the phrase that employees’ personal rights are “checked at the gate” when they come to work. Thus, an employee’s expectation of privacy is reduced or eliminated if the employer puts its employees on notice that they should have no expectation of privacy in the workplace.
Employers may adopt policies, for example, stating that employees may not bring weapons to work even though private citizens have a right to bear arms. Employers frequently reserve the right to search employee lockers or desks, or even employee purses. At a minimum, therefore, we recommend that you adopt a policy that puts employees on notice that GPS tracking is in place.
There also must be some business justification for an invasion of privacy, which must be balanced against the extent of the invasion. For example, cameras in restrooms may have some business justification, but the extent of the invasion almost certainly outweighs any business justification.
Tracking field employees so that the employer knows where they are and how long they spend at each job does not appear to unreasonably intrude in the employee’s privacy “space.” By the same token, it’s easy to understand why an employer would be interested in knowing its employees’ whereabouts.
Monitoring employees after working hours appears to have very little business justification, and whatever justification might exist would almost certainly be outweighed as an unnecessary intrusion. (As a practical matter, I don’t know whether the cell phone would have to be turned on for the GPS device to work. If that’s the case, you could just tell employees to turn off their phones after work hours.)
Obtain legal advice before implementing any such policy. If a union represents the work force, the implementation of such a policy would probably require bargaining.
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