Tracking Employees By GPS: Better Have a Good Policy

by Michael Haberman on February 14, 2012 · 7 comments

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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{ 5 comments… read them below or add one }

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Aron March 29, 2014 at 6:10 pm

Working for a Public agency we have gps installed on our vehicles. We are required to be on-call for which we are not paid until a call comes in. The system they are using has an option for a Geofence that will alert upper managers when we enter or leave our homes. We are allowed to use these vehicles as our personal vehicles during the week we are on-call. In my opinion they are tracking us during non-working hours and we should be paid standby time if they are going to track us after hours and make us use these vehicles. What are your thoughts?

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Michael Haberman March 31, 2014 at 10:09 am

The law basically makes a distinction between “engaged to be waiting” and “waiting to be engaged”. The first one is you are on-call and your activity is restricted thus keeping you from being able to do personally whatever you want. That is typically paid time. If you are just on call but free to do whatever you want you just need to respond to calls then that is typically not paid time. Certainly if you are using a GPS company truck in off hours you are being tracked. If you don’t want to be tracked, don’t use the truck.

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