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Private eyes are watching you: The legality of employers’ use of GPS devices to monitor employees

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Editor’s Note: Kyle Still is a member of the Labor and Employment Practice Group at Ward and Smith, P.A.

As the old adage goes, time is money. As technology improves, it provides the opportunity for employees to perform their tasks in a quicker, more efficient manner. Better technology also allows an employer to provide more services and to create more products for consumers, thereby increasing the employer's potential for profits. Unfortunately, however, increased capabilities in technology also create opportunities for decreased employee productivity because employees now may engage in non-work-related activities during business hours. This is particularly true for employees who are required to be away from company premises during the workday and who otherwise may be tempted to perform personal errands and activities interspersed with their business duties. Many employers have recognized this blending of personal errands and work duties and how it decreases employee productivity. As a result, many employers have decided to make technology work for them by utilizing global positioning system ("GPS") technology to monitor their employees and determine how they spend their time during the workday.

The Logistics, Benefits, and Risks of GPS Monitoring of Employees

GPS technology utilizes satellites to transmit signals to devices on the ground that can use the signals to ascertain the device's exact location by calculating its latitude, longitude, and elevation. Although GPS technology was once expensive, it has become commonplace in the consumer market and relatively inexpensive in recent years. In fact, pursuant to federal law, all cellular phone carriers currently are required to offer GPS services. Employers can use this technology by including GPS devices in company-issued equipment. For example, an employer can have GPS capability activated in employer-issued cellular phones, as well as having it installed in vehicles and even in name badges and key fobs.

The employer then can use the GPS data to identify unauthorized activity that exposes the employer to liability or lost profits, such as speeding in company vehicles, moonlighting, dalliances, or inefficiency resulting in excess overtime. For example, most ground delivery shipping companies such as UPS and Federal Express have GPS tracking devices installed in their trucks in order to determine whether their drivers are taking inefficient routes, stopping at a delivery location for too long, driving at excessive speeds, or going to unauthorized or unnecessary locations.

Many employees, however, object to their employer's use of GPS technology to track the employee's location. These objections become even more pronounced when the employer has the ability to track an employee's movements after work as well. For example, if an employee has the right to use a company vehicle outside working hours, the employer can track that employee's whereabouts both before and after the business day. While an employer may have a legitimate objection to its employees shirking their responsibilities during business hours, an employer generally has no legitimate basis to monitor an employee's personal life. As a result, it is important for an employer to find the right balance to ensure that its use of GPS technology is only for legitimate, business-related purposes.

The Legality of GPS Monitoring of Employees

To date, there have been no court decisions directly addressing an employer's use of GPS technology to track employee whereabouts. However, analogous decisions in other areas of the law can provide guidance to employers on how they should approach this complicated issue.

First, an employer utilizing GPS technology to track its employees' locations should have a clear written policy in place alerting employees of this fact. This policy should explain, in unmistakable language, that such technology may be utilized and that the employees have no reasonable expectation of privacy regarding their whereabouts during working hours or when performing company business. If applicable, this policy should clarify that it extends beyond the workplace to other areas where the company conducts its business, such as clients' places of business, roadways, and conferences.

Second, the employer should ensure that it is using data gathered from GPS devices only for proper purposes, despite the fact that the employer may be able to gather GPS data for non-working hours. In this context, a proper purpose must relate to the employer's business or the services performed by the employee for the employer. For example, some employees may be issued cellular phones with GPS capability for use both during working hours to call clients and associates, and also after work to call their friends and family. Since the phone is on during both working and non-working hours, the employer has the capability of tracking where an employee is, down to a street address, while not at work. Such use of GPS technology by an employer against an employee could potentially expose the employer to liability for invasion of the employee's privacy. Whether such claim would be successful has yet to be determined, and only time will tell if these claims will become commonplace.

Conclusion

GPS monitoring of employees is likely to increase in the future as the technology becomes cheaper and more readily accessible to everybody. An employer using such devices to track its employees must walk a fine line to ensure that its use of these devices is for business purposes only and done in a way that does not invade the privacy of its employees. The future consequences of this technology to both employees and employers are just starting to unfold, and it is unclear just how far employers will be allowed to go in their use of this technology to track the travels of employees.

© 2009, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Kyle R. Still practices in the Labor and Employment Practice Group, where he represents clients before the U.S. Equal Employment Opportunity Commission, the North Carolina Industrial Commission, and the Employment Security Commission of North Carolina. Comments or questions may be sent to ks@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.