Use Care In Tracking Your Employees Electronically

Authored by Adrian Hoppes. Published in the Sacramento Business Journal September 2015.

“No wonder John called in sick today. I just checked the GPS on his cell phone and he was at the bar across the street until 2 a.m.”

Has this would-be detective/supervisor helped enforce the company attendance policy? Maybe, but he potentially committed a crime — and exposed the company to civil liability as well. Understanding the do’s and don’ts of using GPS or other tracking methods is essential to avoid costly mistakes.

Two of the most common location-tracking methods involve the Global Positioning System and radio frequency identification technology, or RFID. GPS uses signals between a ground receiver and a satellite to establish location. RFID uses a smart identification chip implanted into an object that can be detected at close proximity by a reading device. These technologies are becoming extremely accurate and are finding new applications, including in the workplace. They are also becoming increasingly affordable. When it comes to employee tracking, the most common methods are vehicle-tracking systems, cell phone tracking and smart chip identification cards.

Employers use these technologies to track employees for a myriad of reasons, such as monitoring employee efficiency, streamlining travel, accessing real-time progress and ensuring compliance with regulations. The tracking devices can be instrumental in validating travel logs, time sheets, and ensuring company time is not being used for personal business. A company can, however, step into dangerous territory once it begins to use the technology to acquire information not relevant for a legitimate business purpose.

It is a crime in California to use an electronic tracking device to determine the location or movement of an individual. While the criminal statute has exceptions for law enforcement and the “black box” in modern vehicles, it does not address employee use of company vehicles, cell phones or smart chip identification badges. It also does not expressly address the defense of consent in these employee-tracking situations, but it is likely that valid employee consent to the tracking would defeat the claim that a crime was committed. Valid consent will also most certainly defeat a civil claim of invasion of privacy. The civil claim requires the employee to have a reasonable expectation of privacy in the actions monitored by an employer.

A reasonable expectation of privacy is determined by two prongs: surrounding circumstances and society’s view of what is reasonable. Recently in a New York case, it was found unreasonable for the employer to use GPS to investigate potential employee fraud when the monitoring occurred during non-business hours and while the employee was on vacation. The case highlights the importance of balancing the purpose of the monitoring with the method and intrusiveness of it.

Accordingly, to protect against both criminal and civil charges, employers should provide notice of the tracking and obtain the consent of their employees. This can be accomplished with properly drafted notices, consent forms and handbook policies. These communications should be updated when the methods or intrusiveness of the monitoring change.

The law governing GPS, RFID and other monitoring technology in the employment context is still in its infancy. There are few cases on the specific subject, but overall courts have held that employees should not expect a high level of privacy in the workplace. Keep in mind though, as GPS technology evolves, employers may become privy to intimate details of the personal lives of their employees; more so than the current law allows. Understanding the capabilities of your technology as it progresses is pivotal in ensuring compliance. The following are a few recommendations for companies using or considering the possibility of using GPS, RFID or other monitoring technology with its workforce:

• Before you launch a new tracking technology, determine what you will do with the data and if there are any legal restrictions.
• Develop appropriate policies, notices and consent forms. Ensure protocols are in place to avoid unlawful monitoring of employee activity.
• Ensure the policies are communicated regularly to staff affected by the monitoring and obtain consent.
• Ensure that supervisors conducting the monitoring abide by the policies and do not unnecessarily venture into private matters that have little or no legitimate business interest.
• Ensure the program is administered in a non-discriminatory manner.
• Ensure that your technology advances and updates do not result in an unintended over-reaching into privacy rights of your employees.