With the proliferation of wage and hour litigation, especially in Florida which has the highest number of Fair Labor Standards Act (“FLSA”) cases filed annually nationwide, employers have sought for better ways to track employee work time in anticipation of defending against unpaid overtime claims. Additionally, employers have used monitoring devices in hopes of increasing efficiency, address safety concerns, ensure compliance with company policies, protection of employer-owned property; and for customer service purposes. One such monitoring method is the implementation of global positioning system (“GPS”) devices on equipment, such as vehicles, cellular phones, laptops, IPADs.
Few courts have addressed the issue of GPS tracking in the employment context, although, most have held that employers may use tracking devices on company-owned equipment, where the employee does not have a reasonable expectation of privacy in its use. Several states, California, Minnesota, Tennessee, and Texas, have laws preventing the use of mobile tracking devices in order to track other individuals. Common exceptions to these laws include the consent of the owner of the device or vehicle to which a tracking device is attached.
In addition to notice and consent, employers should consider whether employees have a reasonable expectation of privacy when using the equipment on which the GPS device is to be attached or installed. A balance needs to be considered between the employee’s expectation of privacy, the reasonableness of the intrusion upon that privacy (i.e., being tracked by the employer), and the employer’s legitimate business purpose for utilizing the tracking device. These considerations are heightened when the device is attached to an employee’s personal property or to company owned equipment that the employee uses or transports after work hours and the tracking system continues to record such after-hour usage.
Tracking employees during non-work hours can be an invasion of the employee’s privacy, whether the tracking is done via the employer-owned or employee-owned equipment. When the device tracks non-work time, such as during the evenings, weekends, and when the employee is on vacation, the employer may gain private information about an employee that would be considered an invasion into the employee’s personal privacy. For example, an employer may find out that an employee travels each day after work to a dialysis center; that the employee has a pattern of visiting gambling facilities; the employee’s travel habits; where and how often the employee shops; the amount of restroom breaks an employee takes during the day; the employee’s eating habits; the employee’s religious service attendance patterns or schedule; etc. Not only does obtaining and acting upon such information potentially lead to employee claims of an unreasonable invasion of privacy, but could also lead to claims of discrimination or wrongful termination based upon off-duty conduct (where such claims are permitted under state law, such as in New York).
Thus, information collected through GPS monitoring should be focused on an employee’s job performance and disseminated only to employees who have a legitimate business reason for knowing the information. The tracking should be limited to the legitimate business purposes, conducted only during working hours, and provided the company has addressed the employee’s expectation of privacy. Policies should be carefully drafted to explain the legitimate business purpose, circumstances under which monitoring will take place, notice of the company’s right to monitor employee actions while using Company owned property, the GPS monitoring capabilities of the Company-issued property, and that employees should not have an expectation of privacy while using the same. For employee-owned equipment, employers should have a carefully drafted Bring Your Own Device policy that provides for employee consent for use of the tracking device on the employee’s equipment, and be carefully limited to use only while the employee is working.