New mobile phone technology may allow employers to track very precise movements and activities of employees, such as walking, climbing stairs or even cleaning. As reported by Michael Fitzpatrick of BBC News, the technology developed by KDDI Corporation, a Japanese company, “works by analyzing the movement of accelerometers, found in many handsets.” This enhanced level of monitoring likely will raise serious concerns for courts seeking to balance an employer’s legitimate need to monitor employees with an employee’s expectation of privacy.

To get a sense of how sensitive this technology is, Mr. Fitzpatrick notes that a KDDI mobile phone

strapped to a cleaning worker’s waist can tell the difference between actions performed such as scrubbing, sweeping, walking and even emptying a rubbish bin.

Employers should proceed with caution. There certainly are legitimate business reasons for gathering and analyzing this kind of data:

• Improving customer service
• Enhancing employee productivity
• Identifying safety concerns and rectifying them
• Ensuring employees are performing only assigned tasks
• Confirming employees are working when they say that they are

At the same time, significant concerns about the technology and how it is implemented, together with the potential for unintended consequences, should motivate employers to think carefully before using this equipment:

• Does the technology really work as advertised?
• Can employees manipulate the “accelerometers,” creating false positives for employers?
• When should/must employers turn the monitoring off?
• Will effects will data capable of showing the time, date and duration of certain activities have in the areas of wage and hour law, collective bargaining, classification of workers as employees versus independent contractors, workers’ compensation, administration of leaves of absence, and so on?
• Will data collected constitute personal information to be safeguarded and retained?
• Will employers be required to produce information collected through these mobile phones in unrelated litigation, such as where an employee’s spouse seeking to prove claims of adultery in a divorce action seeks “phone” records to show the location and activity of the employee-spouse?
• Some states already have laws dealing with electronic monitoring, but it is unclear how those laws will apply to this new technology. For example, a Connecticut statute prohibits employers from recording or monitoring the activities of employees in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges operating.  When Connecticut employers perform permissible electronic monitoring on their premises, they must provide employees with prior written notice. 

However, if these phones work as intended, the level of intrusiveness likely will spur opposition by privacy advocates and additional legislation. It also is possible that the U.S. Supreme Court’s decision in City of Ontario, Ontario Police Department, and Lloyd Scharf v. Jeff Quon, et al., currently before the Court, will provide guidance for employers and lower courts as they consider the effects new technologies have on workplace privacy issues. In that case, one issue the Court is considering is whether a California police department violated the privacy of one of its officers when it read the personal text messages on his department issued pager.

There is no doubt technology will continue to advance and bring with it enhanced functionality and capabilities. While the law will try to keep pace, employers will be challenged to apply these technologies in ways that meet the demands of their business, while avoiding the pitfalls of law not yet clearly established.