Using GPS tracking devices without violating employee privacy

Global Positioning System (GPS) devices make it easy for employers to keep track of the location of company vehicles. A GPS device can record and display a vehicle’s location and route to establish a history that an employer may access at any time. Using GPS to track trucks or company cars can help improve safety and deter thefts or carjackings.

For all the pluses of GPS, there are minuses. Because GPS devices also can pinpoint where employees who use company vehicles are and where they have been, the technology has raised new worker privacy concerns that HR professionals need to know about.

Into unchartered territory

Currently, there are no federal or state statutes expressly prohibiting the use of GPS devices in an employment situation. However, employees who resent being tracked or see it as unduly intrusive could use state privacy statutes and common law tort principles to sue for an end to tracking.

One of the first lawsuits involving an employee’s challenge to the use of a GPS device was a Missouri case, Elgin v. St. Louis Coca-Cola Bottling Co. During an investigation of theft, the bottling company installed GPS devices in a number of company vans that employees were permitted to drive during off-duty, as well as working, hours.

One of the employees who had been cleared of wrongdoing sued the employer for, among other things, intrusion of seclusion. The court found the use of the GPS tracking device did not constitute a substantial intrusion upon the employee’s seclusion because “it revealed no more than highly public information as to the van’s location.” Because the van was the employer’s property, “its use of the tracking device on its own vehicle not rise to the level of being highly offensive to a reasonable person.” Elgin was a win for employers.

Anti-union spying?

There may be no laws against using GPS to track employees, but using the devices can expose employers to liability under state and federal labor laws.

Two years ago, the city of Modesto, Calif., installed a GPS unit in the city truck driven by the president of a local municipal employees’ union. He filed a complaint with the state labor board alleging that the city violated labor laws by doing so. Although the union attorney representing the president acknowledged that public employees should not expect a right to privacy while using city vehicles in their work, he claimed the monitoring was directed at gathering information on the president’s union activities.

In 2003, the general counsel of the National Labor Relations Board (NLRB) issued a memorandum that agreed with an NLRB finding that a nonunion employer had violated the National Labor Relations Act by installing GPS units in the trucks of two employees who were known union organizers.

The employer had placed the GPS devices in just those two of the eight trucks the company owned. The GPS units tracked the two employees’ movements, even during nonworking hours, and would have shown whether they went to a common location or visited the homes of other employees.

The NLRB counsel said installing the units interfered with the employees’ labor rights.

The counsel reasoned that the employees were subjected to increased scrutiny without a legitimate business justification.

Advice: If you work in a union environment, be sure to seek input from an experienced labor attorney before you begin using any tracking devices. A labor lawyer can advise you whether your current collective bargaining agreement allows their use.

N.Y. state privacy concerns

Employers should be aware of the various privacy protections that state laws provide. Most states have laws restricting employers from taking actions against employees because of their private, off-duty pursuits.

New York, for example, has one of the most stringent laws concerning the protection of legal, off-duty activities. It makes it unlawful for employers to discriminate against individuals regarding terms or conditions of employment because of their political activities, use of legal consumable products, recreational activities and more.

Instead of tracking all employee activities, it may be more prudent for employers to limit GPS surveillance to on-duty activities. Inform employees that they may be monitored, since the key privacy issue is typically whether an employee had a “reasonable expectation” of privacy.

For example, monitoring could be limited to legitimate business reasons—increasing productivity, aiding in quick responses to emergencies and improving the efficiency and timeliness of driving routes. Employees should be able to shut down monitors during meal breaks and other off-the-clock times. In addition, access to any information provided by tracking devices should be limited to those on a need-to-know basis.

Employers should develop a written policy on GPS use. In addition to shutdowns during breaks and access to GPS data, the policy should address an employer’s:

• Right to monitor employee locations during working hours for business purposes
• Right to discipline employees based on location monitoring
• Method for collecting GPS data, and how you will store it and keep it secure

Be careful out there!