What Is Employee Tracking via GPS?
A more advanced method of tracking employees involves a device called a global positioning system ("GPS"). A GPS is a satellite-based navigation system that utilizes a series of at least twenty-four land-orbit satellites and their ground stations. The satellites provide periodic transmissions of your location and can pinpoint where you are located by the use of a GPS receiver if the GPS receiver has a "line of sight" to the satellites. A GPS receiver is an electronic device, such as those located in modern automobiles, cell phones, smartphones, tablets, smartwatches, electronic key fobs and the like. The device receives the satellites’ periodic transmissions and triangulates your position by measuring the time it takes for the transmissions to reach you and converting that into your location. The satellites send the information through the US Department of Defense, which is said to be the most common position for civilians to gain access to the information. The information received on your matched GPS receiver gives you a latitude and longitude of your current location within a few yards.
There are two forms of GPS employee monitoring: passive and active. Active GPS employee tracking involves a continuous stream of data from a worker’s location for one of several reasons . On the other hand, passive GPS employee tracking provides a log of locations throughout a period of time. Passive GPS employee tracking is the most common type of GPS tracking. For example, a company may use passive GPS tracking within fleet vehicles to determine when a driver traveled to certain locations, such as customer sites or trucking routes. Many delivery and freight companies use GPS devices to track packages and goods during delivery. GPS tracking software can be displayed on a computer or smartphone, so the employer can easily view, sort and analyze the logged data from the GPS.
In addition to fleet vehicle tracking, employers regularly use GPS tracking in their offices, with sales people and other employees. Hundreds of thousands of employees across the nation wear GPS tracking devices as a condition of their employment. Employees working remotely may use GPS tracking devices to provide their employers with data and documentation of their locations during the workday. GPS tracking devices can also provide employees’ locations during business travel so employers can account for or locate their employees if necessary. Some companies may require GPS tracking because they have a fleet of vehicles with a mix of vehicle types and want to receive reports of each vehicle’s location and movement throughout the workday.
Legal Status for GPS Tracking
A comprehensive analysis of the legal framework of employee GPS tracking involves a two-part inquiry: whether an employee has a reasonable expectation of privacy and, if so, whether the GPS tracking violates his or her reasonable expectation of privacy. While the Fourth Amendment is an important part of this inquiry, Section 1 of the California Constitution may provide a more protective shield, and must be considered before analyzing GPS tracking under the Fourth Amendment. The next consideration is whether the nature and extent of the GPS tracking measures are reasonably calculated to align with and/or further legitimate business interests.
Federal Law
There is a dearth of federal case law on this issue, but one important federal statute is the Electronic Communications Privacy Act ("ECPA"). The ECPA has a civil statute of limitations of two years that runs from the date the employee discovers the unlawful access or interception, or one year from the date of discovery of the unlawful disclosure or use. This civil statute of limitations arguably applies to GPS tracking that is deemed an interception or access of an electronic communication. However, the ECPA provides a good-faith defense and immunity for the company who obtained the GPS tracking file by request or otherwise lawfully receives the information from the company receiving the tracker software.
California Law
While the ECPA is quite general, Section 630 of the BPC is particularly instructive and provides many specific requirements and limitations with regard to GPS tracking. Failure to comply is punishable as a misdemeanor, and there are likely civil liability implications as well. Most importantly, a company must obtain consent from the person whose communications will be accessed, or the circumstances must plainly indicate that the person consents to the use of the device or software to obtain the information.
Other Legislation
There may be other legislation, regulations or local ordinances that apply depending on the company’s location or its employees’ locations.
Employee Right to Privacy
As with many aspects of technology and workplace policies, the precise contours of employee privacy rights in the context of GPS tracking vary widely by jurisdiction. The one constant seems to be the rules governing notice and consent requirements to ensure notice is reasonable and compliance with notice is reasonably assured.
As there is no generally applicable federal law governing the use of any type of employee monitoring (including GPS), the common law and state constitutions govern privacy rights in all 50 states. To date (as of this writing), only Minnesota has addressed privacy rights in the context of GPS devices.
In a case involving use of a GPS device placed on an employee’s personal vehicle, involved a plaintiff expressing concern what tracked his vehicle during and after the termination of his employment under a program which allowed employees to receive an automobile allowance instead of a company car, preventing unnecessary travel in such vehicles outside the scope of the employer’s business. The Minnesota Supreme Court held that the common law tort claim of intrusion upon seclusion was viable as to automobile tracking. The Court ruled that the business purpose for the tracking (including ensuring compliance with federal laws and regulations on employee driving habits) outweighed the employee’s claim for intrusion. Courts in other states, including California, have recognized claims for intrusion by GPS but either held the business purpose for the intrusion did not outweigh the employee’s privacy interest or existed simply for publicity purposes.
Employer caution about weighing the business necessity for GPS tracking against the potential for intrusion claims is a strong consideration when crafting and implementing any GPS monitoring program. A number of special considerations specific to GPS devices (which differ from those related to other forms of employee monitoring) warrant review before adopting a GPS tracking policy. Among those considerations are that:
Employee privacy interests obviously vary with the degree of intrusion or expected surveillance, but employees generally do expect some level of privacy when traveling to and from work or performing job duties away from the employer’s premises. As a result, the legal test to discern whether an employee can expect privacy in a given circumstance (for example, describe circumstances where the employer can legally monitor the employee’s location on the job. Where an employee agrees to be available for duty at all time – such as on-call work schedules – the expectation of privacy becomes somewhat less.
The challenge in this area is to balance employee privacy and employer needs for monitoring.
GPS Tracking Implemented by an Employer
For businesses to safely implement GPS tracking measures, it is essential that they first obtain voluntary and informed consent from their employees. This means explaining to employees why the company will be implementing GPS devices, how the devices will be used, and what employees can do to mitigate the invasion of privacy that comes with their use.
After obtaining consent, it is also important that employers develop policies regarding the implementation and use of GPS devices within company vehicles. As is true with most business policies, this policy should have specific rules that all managers and supervisors are expected to follow. For instance , managers and supervisors should be instructed to only conduct global position tracking during those times when it is necessary for the company to do so.
Finally, like many other company policies, it is important for the business to monitor whether or not the policy regarding GPS devices is being adhered to by all managers and supervisors. This might mean that the company should periodically review the GPS tracking data in order to ensure that managers and supervisors are not misusing the tracking technology. At a minimum, the company should ensure that no one is using GPS tracking information for non-work related matters such as, for example, tracking the whereabouts of co-workers in order to get them social invitations.
The Courts and GPS
A number of significant court cases have set important precedents for the use of GPS tracking in the workplace.
In the case of US v. Karo, Supreme Court Justice William Rehnquist wrote in the court’s decision that the Fourth Amendment protects an individual’s right to privacy in situations where "a device that is capable of precise location tracking is used without consent and does not fall within any other recognized exception to private."
The U.S. Supreme Court is one of the most recent courts to weigh in on employee GPS tracking. The case, United States v. Jones, involved a suspect that was tracked using a GPS device that was attached to the suspect’s vehicle by law enforcement in Washington D.C. without seeking a warrant.
The court ruled that the use of the GPS device to track the suspect’s vehicle was an unreasonable search and did in fact constitute a violation of the suspect’s Fourth Amendment rights. "Where, as here, the government has employed a technological device to take at least twice daily video observations of the inside of the Jeep’s cab for a 4-week period, resulting in the seizure and cataloging of every movement that the Jeep made during that period, the Government has unconstitutionally invaded [the suspect’s] reasonable expectation of privacy," states the opinion issued by the U.S. Supreme Court.
The good news for employers is the case never went to trial and the government ended up dropping the charges against the suspect. However, it did cause many employers to change how they go about obtaining consent to track their employees.
Jones v. Landry was a case that brought special attention to the acquisition of consent to monitor via social media. The case revolved around retired Mississippi police officer Zachary Jones who filed a lawsuit against Hector Landry and three other officials. The lawsuit alleged violation of the Fourth Amendment for not obtaining a warrant to track Jones’ activities.
The case opened the door for employers who wanted to incorporate tracking via social media into their talent recruiting process. In this situation, Facebook’s standard Terms and Conditions obtained the consent necessary for I.D. Analytics to legally access Jones’ information.
In both instances, the courts were concerned that law enforcement was overstepping—by using employees’ personal mobile devices to track their movements—for the purposes of gathering client information.
Future of Employee Monitoring
The future trends section should be all about how we are fast approaching the need for clear laws regarding GPS tracking and employee monitoring, since technology has far outstripped the laws as they stand now. This will be made all the more urgent by the fact that wearable devices are expected to be an industry worth $34 billion by 2020. As that figure suggests, wearables aren’t going anywhere.
Wearables are fast becoming ubiquitous on the workplace landscape, while the hardware for wireless network connectivity-enabled devices-which wearables are-is on track to become a $69 billion-dollar industry in the next few years.
A recent survey found the word "wearables" to be the most-used buzzword on workplace policy documents in the last year. While the number of companies mandating or at least allowing wearables among employees is still relatively small, that’s expected to change, as research shows that the majority of employees own or have access to mobile devices. Although the specifics of any proposed legislation will take time to evolve, it’s easy to see the outlines of a legal framework for wearables at work: employees have a right to privacy, they can be required to use company devices only during work hours and in their capacity as workers, and analytics of wearables data can be used only to further the legitimate interests of the company .
For now, it’s up to employers to ensure that their employee monitoring programs are well thought out and properly designed, and that all parties understand privacy issues up front. Still, as wearables become even more widespread, there will be growing pressure to address the laws governing employee monitoring of all kinds-not just GPS data tracking.
It will be especially important that laws are enacted to specifically address the requirements of multiple privacy laws within the same jurisdiction. For example, cryptocurrency mining may be prohibited under the Robinson-Patman Act, but not under state gift card laws. (That was a discussion point in the 2019 Federal Trade Commission 15(b) Comments.)
Any employee monitoring program must address issues that fall under a variety of potentially conflicting statutes at both the federal and state levels. There is also the risk of becoming embroiled in lawsuits filed by disgruntled employees who are members of unions or have filed EEOC complaints or lawsuits.