Identify legitimate business interests to protect and prepare a solid policy

Employers have monitored employees in the workplace daily for years, tracking the number of hours employees work and their use of the company’s electronic systems, including the Internet. Most employees expect and accept the monitoring of their workplace activities. With advances in GPS satellite technologies, employers can now easily and inexpensively monitor employee activities away from the workplace. While employees generally do not object to monitoring work-related activities outside the workplace, non-work-related activities are another matter.

GPS technologies are powerful tools that have the capability of providing employers with useful information about the activities of employees when away from the workplace. This powerful tool, however, also can provide employers information about the personal activities of employees, sometimes by accident. This unintentional receipt of information about the personal activities of employees may create problems for employers, some resulting in legal claims. To protect themselves, employers should consider taking action to minimize claims of unlawful conduct.

Reasons for Monitoring Employee Activities

Employers have many legitimate business reasons for using GPS technologies to monitor employee work-related activities outside the workplace. In addition to ensuring compliance with laws and company policies, employers can use GPS technologies to help improve the bottom-line performance of their businesses. GPS technologies can provide useful information for reducing fleet operational costs and improving customer service.

Some companies in the construction industry install GPS tracking devices in vehicles to ensure compliance with Department of Transportation regulations, to limit the number of driving hours and provide information about a vehicle’s location, which can be useful in determining optimal delivery and pickup times. Many of these same companies install GPS devices in vehicles provided to members of their salesforces to ensure that the vehicles are used for lawful business-related purposes. Similarly, many companies that provide cell phones and laptop computers to employees use tracking chips contained in the devices to locate them if they are lost or stolen.

Employee Concerns

Employees have legitimate personal concerns that employers will misuse the information obtained from tracking and monitoring their activities, vehicles and equipment using GPS technologies. They may be worried that private and personal non-work-related information obtained could be used by their employers to make decisions about work assignments, promotions and continued employment.

For example, GPS technologies could provide information about the religious or union activities of employees, or information relating to medical treatment they are receiving. If an employer takes an adverse employment action against an employee based on information about the personal or protected activities of the employee obtained using GPS technologies, there is nothing stopping the employee from filing a charge of discrimination, an unfair labor practice charge or a lawsuit claiming that the employer violated the employee’s right of privacy.

What Should Employers Do?

To avoid claims of unlawful conduct, maintain good employee relations and prevent the abuse of GPS tracking and monitoring technologies, employers should develop, distribute and implement a policy that makes employees aware that their whereabouts and activities are being tracked and monitored.

Employers should identify the legitimate business interests they are seeking to protect and prepare a policy that is narrowly tailored to protect these interests without intruding on the privacy of employees during non-working hours and personal activities.

For example, employers can direct employees to activate the technology when their workday starts and to deactivate it when their workday ends. Employers also should demonstrate a commitment to limit the collection and use of information obtained using GPS technologies to only that which relates to and furthers their legitimate business interests.

Finally, employers should obtain a written acknowledgment from employees providing that they consent to the tracking or monitoring and that they understand the policy, which should foreclose them from later contending that unknown rules were imposed on them.

While employee tracking and monitoring can provide useful information to employers, it also can cause problems. Properly tailored policies that achieve a balance between protecting the employer’s legitimate business interests and the privacy rights of employees can help mitigate these issues. Once a policy is implemented, it is vitally important that employers take steps to ensure that GPS technologies are not used to obtain personal and private information about employees and that the information obtained relating to the activities of employees is protected from unauthorized distribution and use.

It also is important for employers to take action to ensure that the policy is consistently enforced to avoid a negative impact on employee morale and claims of unlawful conduct.