Blurred lines: Current landscape of GPS tracking in the workplace and outside it — Part Two

August 3, 2012

Phone GPSCourts and tribunals have already weighed in on Global Positioning System (GPS) tracking in the workplace — both with GPS devices and communications devices that have GPS capabilities installed. These rulings have carved out some guidelines for employers who are considering GPS tracking for employees.

  1. Don’t use GPS tracking to bust unions or union organizing. In a 2003 National Labor Relations Board ruling, the NLRB order a complaint to be issued when a non-union HVAC contractor appeared to target two employees with union affiliations when the contractor installed GPS devices on the company trucks driven by the two employees after one of them told the contractor he would begin to organize the eight HVAC employees to form a union. The contractor offered various business justifications for the GPSs, but the NLRB found that none of the justifications were “legitimate” in light of the protections offered by the National Labor Relations Act.
  2. Do use GPS tracking for legitimate business purposes, such as deploying the closest installers for customer calls, transmitting driving instructions or managing employees’ time on the clock, even if employees are union members. The First Circuit Court of Appeals affirmed a dismissal of union employees’ violation of privacy claims and claims that their consent to GPS tracking was required as third-party beneficiaries to a contract between their employer and a national mobile telephone company.
  3. Do draft reasonable employment policies for GPS tracking. Reasonable policies on GPS tracking generally put the employee on notice that her whereabouts during work may be monitored. But such the policy should also include recognition of the work and home-life boundary. An employer may require that GPS tracking on a smartphone, cellphone or tablet is enabled during work hours, but the employee can disable the GPS tracking outside of work hours.
  4. Do get your employee’s consent to GPS tracking — it may be required in some states. Some states may require employers to obtain an employee’s express consent to GPS tracking.
  5. Do abide by the GPS tracking policy you created. Once you have a GPS tracking policy in place, you have made your employee aware of the policy and that he may be monitored, and you have obtained his consent, if necessary, follow the terms of the GPS tracking policy. Only use the GPS data you obtain for the purposes laid out in the policy.

These guidelines should help most employers navigate GPS tracking policies. But some employment attorneys are suggesting that a recent Fourth Amendment decision on GPS tracking in the criminal context may have implications for employers who use GPS tracking.

In United States v. Jones, decided in January 2012, the United States Supreme Court held that warrantless use of a GPS device to obtain evidence used in a criminal trial was a violation of the Fourth Amendment. While the standard for admissibility of evidence in the criminal context is very likely more stringent than the standard for admissibility of evidence in a case involving an employee’s state law privacy claims, employers should be on the lookout for changes in this evolving area of employment law.