Many companies that provide business or transportation services install GPS tracking devices on company vehicles to track their employees and their vehicles and for safety purposes.
Businesses will also use GPS technology to monitor compliance with wage-and-hour laws and to verify that company policies are not violated.
Typically, employees are on notice of this tracking and, therefore, potential privacy and other employment-related claims are mitigated.
However, when employers use GPS data in connection with investigations without an employee’s knowledge, they could be exposing the companies to claims of privacy violations and infringement on constitutional rights.
To the contrary, courts have held that the use of GPS devices in an employee’s personal vehicle can pose more serious privacy concerns and may be deemed to be an unreasonable search, if not done properly.
For example, if an employee’s movements in his or her personal vehicle are tracked or monitored while the employee is not working, all of the GPS data may potentially be deemed to be unlawfully obtained.
Employers also need to be cognizant of certain state laws (i.e. Connecticut, Illinois, California, Texas and Delaware), which may come into play concerning notice to employees and/or consent of employees for the use of GPS on their personal motor vehicles.
An even murkier area is tracking employees’ locations on smartphones. A 2015 California case involving a former employee who was terminated for uninstalling a GPS tracking app from a company issued phone was settled out of court.
Employers could potentially run into issues if such apps are always tracking employees’ whereabouts, not just during company time.
Going a step further, 3 Square Market, a company in Wisconsin, is offering employees microchips on a voluntary basis, at a cost of about $300 to the company per employee. The chip would be inserted into the employee’s hand and would be used to access buildings, log onto computers and purchase food.
The chip is not designed to track employees’ whereabouts, as it does not have GPS tracking, but it still raises potential data and privacy concerns.
If employers intend on tracking their employees utilizing technology, they should provide notice to the employees and clearly state that GPS monitoring may be used in connection with the use of company equipment.
Caroline J. Berdzik is a partner with Goldberg Segalla LLP in Princeton, N.J. She devotes her practice to helping corporate clients navigate employment law issues from proactive counseling through dispute resolution and trial. Her clients include transportation companies. She can be reached at cberdzik@goldbergsegalla.com.
