Tracking Employees By GPS: Better Have a Good Policy

A recent U.S. Supreme Court decision made it illegal for police departments to track people by use of a GPS device. (United States v. Jones, No. 10-1259). Naturally with that ruling the question of whether employers can track employees by the use of a GPS, especially in a smart phone, was raised. The consensus of many attorneys was if you are tracking employees by GPS you had better have a good policy in place.

In a SHRM article writer Allen Smith says “An employer is on safer ground using GPS devices to track employees if it has a policy that instructs employees that it may use tracking devices to monitor employees’ whereabouts during work hours and will not monitor them outside work hours.” Attorney Phillip Gordon of Littler Mendelson took it further and said “The more prudent practice would be to have the employee sign an agreement permitting the installation of the GPS device or activation of the GPS capability on a smart phone.” Naturally I believe it would also have to be a company issued smart phone.

A further step would be to explain to employees that the device would be to the benefit of the employee in that it could be used to corroborate an explanation of presence at a customer’s location when the customer disputes something like a service call. I can think of a situation where a customer might dispute a service technician presence when in reality it was the customer who was not present. It can also be used as a safety mechanism for traveling employees.

In a situation where the employer may be using the GPS device to impose discipline, Gordon said, he “would recommend that the employer be candid about it but also assure that employment decisions will not be based exclusively on location information. Doing some investigation is important because GPS devices are accurate only to between 50 and 100 feet and an employee could have an innocent explanation for having been at a particular location at a particular time.”

There is potential for abuse in having GPS tracking capabilities, however, these are potential landmines of trouble for employers if this tracking is done after hours. The potential problems include invasion of privacy (which will vary state to state); violations of the National Labor Relations Act if being used to track potential union activity; and even violations of the Fair Labor Standards Act if tracking employee whereabouts could be considered compensable time.

As with any policy, any company moving to GPS tracking needs to communicate, communicate and communicate more the workings and benefits of this policy.

If you currently have a GPS tracking policy please let us know how it is working. What other benefits or pitfalls should the rest of us know about?

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