Because of advances in technology, we now have a lot of information about our employees that we never had before. For example, we know where—exactly where—many of our employees are because of the GPS capabilities of their phones and automobiles. Is it an invasion of privacy to ask questions based on that information, e.g., Why did you go 30 miles off your route yesterday? Were you speeding yesterday on Highway 65? What guidelines should we follow for using this information? — Regina, HR Manager in Palmdale
Employer surveillance of employee activities using global positioning system (GPS) or other similar technology should not violate employee privacy if it’s used for legitimate business reasons and is not abused.
To avoid liability, employers should notify employees that the employer reserves the right to use GPS technology to monitor an employee’s location and activities for safety and other business reasons. In general, employers should limit this monitoring to the employee’s work time (and restrict follow-up questions to work-related issues).
Regina’s first hypothetical question, “Why did you go 30 miles off your route yesterday?”would be a valid question to ask a route delivery driver to determine if the deviation from the route was justified.
Regina’s second question, “Were you speeding yesterday on Highway 65?”may or may not be a valid question, depending on the particular circumstances. The question would be valid if the employee was speeding in a company vehicle on or off duty. On the other hand, monitoring an employee’s location and speed while he or she is 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 tracking technology enables employers to monitor the location and movement of a company vehicle. Employers also can monitor employees carrying a cell phone with GPS capability. However, only a small minority of employers are believed to be using GPS technology in this fashion, the American Management Association found in a 2005 survey. Nonetheless, employers’ ability to monitor employees using GPS and other technology has raised concerns among privacy advocates. Indeed, a few years ago, the state Legislature approved a bill requiring employers to notify employees before using GPS in cell phones and vehicles to track their whereabouts, but the governor vetoed it.
For now, monitoring employee location and movement should 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. An 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. The employer may justify such monitoring to employees as a means to aid in the recovery of stolen vehicles, to locate the vehicle (and the employee) in the event of an accident, to ensure that drivers are taking required rest and meal breaks, and (last but not least) to monitor employee efficiency.
Even without having notified 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 to privacy.
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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 by using a GPS tracker on his assigned company vehicle. The employee worked as a technician servicing beverage dispensing equipment. The employer had experienced cash shortages from vending machines with no sign of forced entry. Suspecting an “inside job,”the employer investigated the plaintiff and other employees who serviced these machines. As part of the investigation, GPS trackers were placed on the vehicles assigned to them. The employees were permitted to drive their company vehicles during work and nonwork hours. After the investigation ended, the employer notified the employee that a GPS tracker had been placed on his vehicle, and he was cleared of wrongdoing. The employee sued, alleging invasion of privacy.
In dismissing the privacy 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 by the GPS tracker was limited to the whereabouts of the company vehicle at any given time. The court ruled that an automobile’s location and path of travel on public roads is not private. Especially because the vehicle was the employer’s property, the court held that the company’s use of the GPS tracker on its own vehicle was lawful.
Accordingly, the use of GPS technology to monitor employee location and movement may be lawful as long as it’s limited to legitimate business reasons. Absent compelling reasons, we also recommend the employer notify employees in advance that monitoring will occur.
Allen M. Kato, Esq., is an associate at the San Francisco office of the law firm Fenwick & West.