GPS Tracking of Employees –Legal or Not?

Employer surveillance of employee activities using global positioning system (GPS) or similar technology should not violate employee privacy if it’s used for legitimate business reasons and is not abused, says attorney Allen M. Kato, Esq., of the law firm Fenwick & West LLP in San Francisco.

To avoid liability, employers should notify employees that the employer reserves the right to use GPS to monitor location and activities for safety and business reasons.

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In general, employers should limit such monitoring to the employee’s work time and restrict follow-up questions to work-related issues. Here are some GPS-rooted questions employers might ask and the legality of doing so:

“Why did you go 30 miles off your route yesterday?”

This would be a valid question to a route delivery driver to determine if the deviation from the route was justified.

“Were you speeding on Highway 65?”

This may or may not be a valid question depending on the circumstances, Kato says. The question would be valid if the employee was speeding in a company vehicle on or off duty. On the other hand, monitoring employee location and speed while driving off duty, in a personal vehicle, may be an unwarranted invasion of privacy.

However, the fact that an employee is off duty should not totally foreclose employer monitoring. There may be valid occasions to monitor an employee’s off-duty location, for instance, to determine which off-duty employee is closest to a customer for quick response to an emergency.

By way of background, GPS technology enables employers to monitor the location and movement of a vehicle. The technology may also enable employers to monitor employees carrying a cell phone with GPS capability.

At this time, monitoring employee location and movement would not violate privacy laws as long as:

• The employee has little or no expectation of privacy, and


• The employer has a legitimate business reason for monitoring.

Any expectation of privacy may be avoided by notifying employees that company vehicles have GPS trackers installed and/or that company-issued cell phones have GPS capability, and that the employer may monitor vehicle (and employee) location and movement.

Employers may justify GPS monitoring to employees as an aid in the recovery of stolen vehicles, to locate the vehicle (and the employee) in an accident or emergency, to ensure that drivers are taking required rest and meal breaks, and to monitor employee efficiency.

Even without notice to employees that GPS monitoring will occur, the employer may defend against an invasion of privacy claim if the employer’s need to monitor outweighs the employee’s right of privacy.

By way of example, in Elgin v. St. Louis Coca-Cola Bottling Company (a 2005 decision), a federal district court in Missouri rejected a claim that an employer violated the employee’s privacy through use of a GPS tracker on his company vehicle. The employee worked as a technician servicing beverage dispensing equipment. (Employees were permitted to drive their company vehicles during work and non-work hours.)

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The employer had experienced cash shortages from vending machines with no sign of forced entry. Suspecting an “inside job,” the company placed GPS trackers on the technicians’ vehicles. After the investigation ended, the employer notified the employee about the GPS tracker, and told him he was cleared of wrongdoing. The employee sued alleging, among other claims, invasion of privacy.
 
In dismissing the claim, the court explained that under Missouri law, an actionable invasion of privacy must be highly offensive to a reasonable person. Here, the information revealed was limited to the whereabouts of the company vehicle. Especially because the vehicle was the employer’s property, the company’s use of the GPS tracker on its own vehicle was lawful.

In summary, the use of GPS technology to monitor employee location and movement may be lawful as long as such use is limited to legitimate business reasons. We also recommend that the employer notify employees in advance that monitoring will occur whenever possible.