WORKPLACE LAW – Employee Monitoring

Question: I run a small telecommunications company. Lately I have received multiple reports of my technicians arriving late to work sites, sometimes more than an hour after they are scheduled to be there. When I ask them about it they say it is due to traffic, but I suspect otherwise. I provide my employees with work trucks but they do not receive a cell phone. Is there any way I can track the employee’s whereabouts to make sure they are not conducting personal business during work hours?

Answer: Yes, but be careful. There are obvious benefits to tracking employee activity using GPS (Global Positioning Systems). In your case it would be helpful to verify routes and locations of mobile employees, and to ensure that employees are not violating traffic laws or driving to inappropriate locations while on duty. However, before an employer begins using GPS to monitor employees, it should consider the related legal consequences and employee privacy issues. Article I, Section 1 of the California Constitution provides that “all people” have an inalienable right of privacy. This right applies to both public and private employers and employees. Further, California Penal Code section 637.7 prohibits the use of “an electronic tracking device to determine the location or movement of a person” via a “vehicle or other moveable thing” unless “the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” An employer can therefore arguably install GPS tracking on company-owned vehicles, and with prior consent, install GPS tracking on employee-owned vehicles used for work purposes as well. There does not appear to be any similar exception for “other moveable things.” Thus, under the current law, an employer is probably not permitted to track employee’s cell phones, regardless of whether or not they are provided by the employer.

One of the more significant issues appears to be whether the GPS tracking information is related to job performance. In Arias v. Intermex Wire Transfer, the employer required employees to install a GPS tracking app on company-issued smart phones. An employee sued the employer claiming she was fired for uninstalling the tracking app that was also tracking her movements when she was off the clock. The employee objected to being tracked on her own time and, although the case settled out of court, she initially sought over $500,000 in damages for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other related claims.

If an employer decides that GPS tracking is still a viable option after considering the potential privacy and legal implications, the employer should implement a policy that provides full disclosure of the tracking and obtain employee consent. The policy should (a) identify the business reasons that necessitate the GPS tracking, (b) describe how, when, and where employees should expect to be monitored, (c) ensure that any data collected will receive adequate protection, (d) and provide for any discipline that could result from disabling the device. Finally, employers should ensure that any monitoring is limited to work activities during work hours and does not reveal any details about the employee’s private life.