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Tracking employees via GPS may generate TMI

Rich MeneghelloThere are a lot of good reasons why employers might want to track company vehicles through a GPS monitoring device – from managing logistics and efficiency, to enforcing compliance with company policies and procedures, to ensuring employees’ safety. However, where does one draw the line?

Can employers monitor employees’ movement 24/7? Could an employer take it one step further and track a worker’s laptop or cell phone? At what point does this behavior become an illegal invasion into privacy?

The world of electronic surveillance in the workplace is evolving rapidly, and employers will want to weigh multiple considerations before initiating or continuing a company program utilizing GPS to track workers’ movements.

An increasing number of employers are using some form of GPS to track company vehicles and/or employees; companies in the trucking, transportation, sales, construction and fleet industries have reported success in some form of monitoring. Not all have designs on spying on their employees; rather they recognize the benefits of increased efficiency for delivery times and reduced fuel costs, improved dispatch times, better customer service, recovery of stolen property, and general loss prevention.

But employers quickly realize that there are other benefits to having an eye in the sky on their workforce: making sure a delivery driver isn’t taking a detour to a watering hole on the way back to the office, confirming hours of work for compensation purposes, or ensuring safe driving practices, for example.

So let’s start with the basic question: Is this legal? In most states, yes. While California prohibits such tracking, and a few other states require employers to notify employees in advance if they are being tracked, the general rule across the country is that legitimate tracking of employees via GPS is a legally-acceptable practice.

In one of the first cases to deal with this issue, the right to monitor employees was upheld. A Coca-Cola bottler in Missouri was investigating a theft and installed GPS devices in company vehicles, but when one of the employees cleared of the crime learned of the activity, he sued for invasion of privacy. The court rejected his claim and said that the company had the right to track its own vehicles, and that the information it was gathering – the location of the car – was “highly public” anyway and therefore not private enough to warrant an invasion of privacy claim.

Taking it a step further, another prominent case involved a school worker in New York who was issued a company cellphone with GPS tracking installed. The employer used the data to determine that the employee was continually leaving work early and falsifying his time cards. After he was terminated, he filed a grievance seeking his job back; however, the judge ruled that the employer had a legitimate reason to track his movements and that he was aware of the monitoring. The termination was upheld.

On the other hand, we might see backlash to this general rule as Americans seek some freedom from the ever-increasing ways in which they can be monitored. In 2012, the Supreme Court held that GPS tracking of a suspected drug dealer’s car without a warrant was unconstitutional. And just last month, the Supreme Court struck down police seizures of cellphones without warrants, recognizing that people use cellphones for many other reasons than simply making calls, and that the treasure trove of information contained within – including location tracking data – should be protected in some manner.

Although these two cases involved criminal law and have no direct applicability to the workplace, many observers believe they may usher in a new era of personal privacy to which employers must adapt.

Here are some practical tips for employers to stay on the right side of the law. First, at a minimum, employers should be up front with their employees when it comes to GPS tracking. Whatever is being done in this regard should be contained in a written policy distributed to all employees, and should be covered in new worker orientation and training sessions.

Second, taking in a step further, employers should provide this written policy as a stand-alone document that should be signed by employees, so that if and when any GPS data needs to be used against them the employer can point to the clear recognition of the situation.

Third, and perhaps most importantly, employers should limit any tracking to work hours and legitimate work reasons. The easiest way to walk into an invasion of privacy claim is to virtually follow employees around after hours and for reasons having nothing to do with their work.

A good rule of thumb is to not gather too much information about employees. Imagine terminating an employee for poor performance, and then being sued by the ex-worker blaming the termination on sexual orientation, a medical condition, practice of a certain religion or being a union organizer. If that worker can show that he or she was tracked after hours to a synagogue or a gay pride rally or a psychiatrist’s office or a union hiring hall, the person now has a leg to stand on.

Fourth, train managers to narrowly tailor GPS searches for legitimate reasons and only during working hours. Sometimes mid-level managers can get drunk with power and enjoy spying on workers; keep such actions in check.

Fifth, before taking disciplinary action against a worker because of GPS data, investigate thoroughly by asking the person for his or her side of the story and seeking out other evidence. After all, the worker might have a legitimate excuse such as being stuck in traffic or forced to take a detour because of road construction.

Finally, employers would do well to stay on top of this ever-evolving area of the law. Congress and several state legislatures are debating these topics and considering bills to address these concerns in the near future. No doubt we will see new laws passed and court cases published that will further define the contours of GPS use at work.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

About Rich Meneghello