Employers have used monitoring devices in hopes of
increasing efficiency, address safety concerns, ensure compliance with company
policies, protection of employer-owned property; and for customer service purposes. One such monitoring method is the
implementation of global positioning system (“GPS”) devices on equipment, such
as vehicles, cellular phones, laptops, IPADs.
Few courts have addressed the issue of GPS tracking in the
employment context, although, most have held that employers may use tracking
devices on company-owned equipment, where the employee does not have a
reasonable expectation of privacy in its use.
In addition to notice and consent, employers should consider
whether employees have a reasonable expectation of privacy when using the
equipment on which the GPS device is to be attached or installed. A balance needs to be considered between the
employee’s expectation of privacy, the reasonableness of the intrusion upon
that privacy (i.e., being tracked by the employer), and the employer’s
legitimate business purpose for utilizing the tracking device. These
considerations are heightened when the device is attached to an employee’s
personal property or to company owned equipment that the employee uses or
transports after work hours and the tracking system continues to record such
after-hour usage.
Tracking employees during non-work hours can be an invasion
of the employee’s privacy, whether the tracking is done via the employer-owned
or employee-owned equipment. When the device tracks non-work time, such as
during the evenings, weekends, and when the employee is on vacation, the
employer may gain private information about an employee that would be
considered an invasion into the employee’s personal privacy. For example, an employer may find out that an
employee travels each day after work to a dialysis centre; that the employee
has a pattern of visiting gambling facilities; the employee’s travel habits;
where and how often the employee shops; the amount of restroom breaks an
employee takes during the day; the employee’s eating habits; the employee’s
religious service attendance patterns or schedule; etc. Not only does obtaining and acting upon such
information potentially lead to employee claims of an unreasonable invasion of
privacy, but could also lead to claims of discrimination or wrongful
termination based upon off-duty conduct.
Thus, information collected through GPS monitoring should be
focused on an employee’s job performance and disseminated only to employees who
have a legitimate business reason for knowing the information. The tracking
should be limited to the legitimate business purposes, conducted only during
working hours, and provided the company has addressed the employee’s expectation
of privacy. Policies should be carefully drafted to explain the legitimate
business purpose, circumstances under which monitoring will take place, notice
of the company’s right to monitor employee actions while using Company owned
property, the GPS monitoring capabilities of the Company-issued property, and
that employees should not have an expectation of privacy while using the
same. For employee-owned equipment,
employers should have a carefully drafted Bring Your Own Device policy that
provides for employee consent for use of the tracking device on the employee’s
equipment, and be carefully limited to use only while the employee is working.
