As the workforce in the United States becomes more mobile, so do the capabilities of employers to track their employees on the road. From a distance, accurately monitoring employee productivity, working hours, injuries, conduct and company property presents a challenge. The use of global positioning systems (GPS) is an excellent way to address these difficulties. Using satellites and receivers installed in a vehicle, laptop or cell phone, these devices are able to locate an employee’s physical location and vehicle speeds with reasonable accuracy.
There are several legal considerations that employers must address before using GPS technology for their mobile workers.
Employees may have a reasonable expectation that their location and actions are private from their employer.
For example: An outside sales representative attends a support group during his lunch break during working hours. Though he does not disclose this information to his employer or co-workers, the employer discovers that the employee is attending these meetings through GPS monitoring. The employer may then be held liable for invasion of privacy.
Employer Fails to Supervise Employees Properly
If an employer discovers that an employee presents a risk to others and does not act, the company is at risk for a claim of negligent supervision.
For example: A commercial driver tends to speed while he is on the job, and his employer discovers this through the GPS system installed in his vehicle. The employer does nothing about this discovery, and the driver subsequently gets into an accident because he was speeding. As a result, the employer is liable for negligent supervision.
Though an employee’s membership with a group may be protected by federal and state discrimination laws, the employer may not always be aware that the employee is a member. Yet, with the use of GPS technology, an employer can sometimes discover their employees’ affiliations, thus supporting a discrimination claim.
For example: An employee is receiving treatment for a terminal illness on his own time. Through GPS tracking on his laptop, his employer discovers that the employee is ill. A few months later, the employee is terminated and when the he files a disability discrimination claim, his employer cannot deny knowing about the employee’s illness because his laptop was being monitored.
Inaccurate Data Collection
If an employer makes an employment decision based on data collected from a GPS and the information is found to be inaccurate, the employer may be subject to defamation, wrongful termination and employment discrimination claims.
For example: The GPS system installed in a delivery driver’s vehicle inaccurately places the driver at a gentlemen’s club near where he is actually making deliveries. Though the employee was doing his job honestly, the employer assumes that he was visiting the club on the clock. As a result, the employee is terminated. This puts the employer at risk for claims of wrongful termination.
Employers reap several benefits from installing GPS monitoring into their employee’s vehicles or electronic devices, such as the following:
- Increased efficiency and improved customer service.
- Better recordkeeping capabilities and improved business operations.
- More contact with employees throughout the work day.
Employers should also remain cautious of these dangers of using GPS technology:
- Employees who are monitored may feel as though their employer does not trust them and may relinquish some of their independence and individuality that they once brought to the job. This may negatively affect their independent decision-making abilities.
- There may be an urge to implement unreasonable schedules because employees are constantly monitored.
- The ability to monitor employees during breaks and before and after working hours can pose issues. By learning what employees do with their own time, an employer can obtain a full picture of the lives of their mobile employees. Thus, employers may breach the privacy that their employees expect and prefer.
Recommendations for Employers to Reduce the Risk Associated with GPS Monitoring
When using GPS devices to monitor your employees, consider these recommendations:
- Limit GPS monitoring to company-owned property, as it is easier for an employee to make a privacy claim while in possession of his or her own property.
- Develop a comprehensive written policy about the use of GPS technology, and enforce this policy strictly. It should outline how the devices and the information attained will be used. All employees who will be monitored with a GPS device should acknowledge receipt of the policy in writing.
- Limit GPS monitoring to the confines of the policy for legitimate business operations only.
- Employers should also not monitor any activities relating to union organizations, as that can be seen as unlawful surveillance.
- Re-calibrate the system for accuracy on a regular basis.
- Many states have privacy laws. Check with your legal counsel before implementing GPS technology.
Remember that while the use of GPS technology can be a powerful management tool, it can become a legal nightmare. By using this technology lawfully, you can benefit the efficiency of your business while respecting the privacy of your employees.