Seyfarth Synopsis: When choosing a GPS location tracking app, California employers must consider several factors to see if the app unduly infringes on employee privacy. Let some references to popular music be your guide.

It’s As Easy As ABC

Today’s GPS technology makes it easy for employers to track the location of employees. And an employer need not be a smooth criminal to do so.

While it may just be human nature, many employers want to know where their employees are during work hours. Several companies offer GPS tracking apps and devices that enable employers to track employees—whether they travel to the corner of the sky or the heartbreak hotel. These programs can not only track the location of employees but also link this information to payroll and timesheet data. Employers might thus increase route efficiency in deliveries or streamline project management.

But before an employer says “I want to rock with you” to any of these companies, the employer should consider the legal implications of tracking employee locations.

The Law Is Not Black Or White

As noted in previous posts, an employer’s lawful ability to track employees hinges on whether the employer is infringing on employee privacy rights. Article I, Section I of the California Constitution states that “all people” have an inalienable right to privacy, and California peculiarly applies this constitutional protection to private employment.

While California law emphasizes privacy, the issue as it relates to tracking employee locations has not been heavily litigated. Thus, there is no specific roadmap for employers.

Moreno v. S.F. Bay Area Rapid Transit District, though not an employment case, provides guidance on how a GPS tracking system implicates personal privacy. In Moreno, the plaintiff claimed that a transit company violated her right to privacy through the tracking abilities of its cellphone app. The app tracked user location so that if a rider reported something amiss on the train, operators could identify where the suspicious activity was occurring.

Moreno made two rulings relevant here: (1) A link to a privacy policy consenting to being tracked when installing an app does not suffice to inform users that their location would be tracked. (2) A user’s privacy is not so much at risk when the app tracks an ID number rather than the user’s personal identifying information.

Don’t Get Too Futuristic

Just as in Michael’s worst video—Scream—things can go terribly wrong if you try to get too futuristic. Employers should refrain from requiring employees to implant subcutaneous chips to track their whereabouts or other information. Requiring a chip implant is something that might appeal to every parent of a wayward teenager (is there any other kind?), but this measure in the employment context is expressly prohibited by statute, with steep fines for noncompliance.

Takeaways When Looking at the Man In The Mirror

If you are now saying to yourself, “I’m gonna make a change,” while reviewing your policies on GPS tracking, here are some factors to consider.

First, clearly disclose to employees that their location will be known to the employer during work hours, and require them to consent to tracking their location.

Second, in light of Moreno, consider these points, in addition to those outlined in our previous post:

  • Use a tracking program or software in an app format—Moreno was persuaded that the tracking app did not violate California Penal Code section 637.7, which makes unauthorized tracking a misdemeanor, because software, like an app, was not a physical “tracking device” within the meaning of the statue.
  • Use software that associates the employee’s location with an ID number rather than more personal information.
  • Provide employees notice that the app will track their location.
  • Require employees to consent to the app tracking their location.
  • Track locations only during work hours. Even if your people are workin’ day and night, make sure the app stops tracking locations during non-work hours, including breaks.
  • If you’re a public employer, comply with the Cellular Communications Interception Act. Gov’t Code § 53166. The Act requires “[e]very local agency that operates cellular communications interception technology” to maintain reasonable security procedures and implement a privacy policy to insure that the information obtained remains private.

Workplace Solution: Because the issues surrounding this area of law are in flux, employers should be deliberate when enacting a GPS tracking policy and continually revisit it to maintain compliance. We will continue to monitor developments in this area and update our readers. In the meantime, if you have any questions, please contact your favorite Seyfarth attorney.

Edited By: Coby Turner

Seyfarth Synopsis: With the availability of new vehicle GPS devices and smart phone tracking applications, employers need to be mindful of employee privacy rights when using location technologies in the workplace.

It Doesn’t Take A Magellan To Map Routes Anymore

Employers now have available the technology that concerned parents of wayward teenagers have often wished for. Thanks to technological advances, one can now monitor another’s movements in ways that could only be imagined a couple of decades ago.

The benefits of tracking employee activity through GPS (Global Positioning Systems) include: (i) verifying routes and locations for mobile employees, particularly in the transportation or delivery industry, (ii) ensuring that employees are not violating traffic laws, (iii) monitoring employee overtime, (iv) verifying that employee time records are accurate, (v) locating company-owned stolen vehicles, and (vi) verifying that employees are not misusing company vehicles by, for example, driving to inappropriate locations or at inappropriate times.

With the advent of GPS smart phone applications, companies have begun to install GPS tracking apps on company-issued smart phones, which monitor not only the employees’ transportation in vehicles, but may allow for out-of-vehicle monitoring as well.

So with all of this great new technology, where (if at all) must employers draw the line when it comes to tracking employee mobility?

Navigating The Nexus of Privacy and Employer Needs

At the center of the debate on the lawfulness of tracking employees via GPS is the employee’s right to privacy vs. the employer’s need for productivity and business-related information. California has a strong tradition of protecting individual privacy rights. Article I, Section 1 of the California Constitution provides that “all people” have an inalienable right of privacy. This provision applies to private as well as public employers. California employers thus must be wary of infringing on employee privacy by learning too much about private time and lawful off-duty activities.

Litigation Beginning To Moovit Related To GPS Tracking

Of major importance is whether the GPS tracking information is related to job performance: if it is not, then cataloging off-duty activities may violate constitutional rights to privacy. Consider this recent cautionary tale: In Arias v. Intermex Wire Transfer, an employee sued her former employer, claiming she was fired for uninstalling a GPS tracking app from a company-issued smart phone that was tracking her movements even when she was off the clock. The employee objected to being tracked on her own time and compared the GPS to the ankle bracelet placed on someone under house arrest. She sued for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other claims, seeking over $500,000 in damages. This suit, privately settled, is likely not the last of its kind.

An additional source of legal restriction on remote employee monitoring is California Penal Code section 637.7, which 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.” So while an employer arguably can install GPS tracking on company-owned vehicles, and even on employee-owned vehicles used for work purposes (with advance consent as we’ve blogged previously), there is currently no such carve-out allowing employers to require GPS tracking through smart phones.

In What Waze Should Employers Be Mindful About Using GPS?

A California employer using GPS to monitor employees should have policies carefully considering employee privacy issues. As with other kinds of workplace monitoring (e.g., cameras in the workplace, use of email and Internet systems), we recommend (a) full disclosure to employees, and (b) obtaining employee consent, including implementing a separate GPS tracking policy. The policy should:

  • Outline the legitimate business reasons for using GPS tracking (e.g., increasing operational efficiencies, improving customer service, maintaining accurate timekeeping records, improving safety).
  • Provide clear notice of the company’s right to monitor employee locations while the employee is using company-owned property, describe when and how employees should expect to be monitored, and tell employees they should have no expectation of privacy while using the company property.
  • Explain how the employer will use and safeguard data collected.
  • Notify the employee of the consequences that could lead to discipline for disabling a GPS device without the employer’s permission.
  • Communicate the policy to all employees, and have them provide written acknowledgement of their receipt and understanding of the policy.

Other best practices to consider include:

  • Limit monitoring of activity to work hours, and monitor an employee’s location only for a specific business purpose in compliance with the GPS tracking policy. The collected data should not reveal details of the employee’s private life.
  • Limit access to the GPS tracking information to company personnel who have a clear business need to know that information.
  • Make sure that you store any GPS-related data securely.
  • Where employees are unionized, consider whether there is a duty to bargain before implementing the use of GPS tracking, depending on the language of the contract and the parties’ course of dealing. The NLRB has advised that a complaint would issue when an employer failed to bargain before unilaterally implementing a vehicle data recorder system to monitor employee compliance with driver safety rules.

Workplace Solution: Because this area of law is still developing as new technologies emerge, employers should continually revisit their GPS policies for compliance. We monitor developments in this area and will provide our readers with further information as it becomes available. In the meantime, if you have any questions, please contact the author or your favorite Seyfarth attorney.

Edited by Coby M. Turner.