With recent advances in technology, many companies are considering the use of Global Positioning System (GPS) technology to assist in tracking company assets, which can affect employees and broach invasion of privacy issues. In this blog post, partner Ken Joyce sheds some light on the legality of monitoring employee whereabouts using GPS devices.
Is it legal to monitor employees’ whereabouts through GPS technology?
GPS tracking provides businesses real time monitoring that can insure better logistical performance and accuracy in gauging time spent in the field. While there is rarely a concern when using GPS technology to track company equipment and vehicles, use of GPS devices to monitor employees’ whereabouts can pose a problem. There is no outright prohibition to the use of GPS to track employees; however, the situation becomes hazier as an employer’s monitoring of employees extends to capture non-work related activities.
For example, a company could have an employee who regularly made doctor visits for medical treatment during his or her lunch hour. The employee did not disclose these doctor visits and had no intention of allowing the employer to know about these visits. Discovery of this information through non-consensual monitoring could make the employer susceptible to a claim of invasion of privacy.
When does GPS invade employees’ privacy?
Whether you are implementing a GPS tracking system to monitor company assets or employees, including, but not limited to, asking an employee to carry a personal GPS unit, smart phone GPS application or connection to their personal vehicle, there are legal concerns that you must be aware of and guard against. A primary concern is invasion of privacy claims. The law will protect employees from an employer’s invasion through the use of GPS technology when an employee has a reasonable expectation of privacy, including their off-duty whereabouts and other off-duty activities.
How can companies avoid invading employees’ privacy?
There are certain actions employers can take to help minimize company risk. For instance, new GPS devices permit employees to disconnect from the system so that they can control their privacy when off-duty.
Even if employers are utilizing GPS devices that have the ability to turn off, companies still should develop a sound policy to address the scope and parameters of GPS tracking. Additionally, employers should notify all affected employees and have employees sign an acknowledgement of the GPS tracking. An informed consent may serve as a defense to a claim of invasion of privacy, but the employer would still need to prove that the employee consented to the GPS tracking at the time and place alleged to have been an invasion of privacy.
It is important to disclose the use of GPS tracking to all affected employees, so that they are on notice that the system is capable of tracking their movement, including during off-duty time, if GPS is not disconnected. A legitimate business reason to track employees, coupled with a written acknowledgement, can help establish that there is no expectation of privacy while performing during work hours.
To help minimize company risk when using GPS technology, it is recommended that employers seek specific advice from legal counsel of their choice.
Kenneth J. Joyce’s practice focuses on representing businesses and individuals in business litigation. Ken has extensive experience handling contract disputes, complex corporate litigation, business torts, shareholder and partner disputes, and employment law litigation. Ken is rated AV® Preeminent® by Martindale Hubbell and selected as Florida Legal Elite® by Florida Trend (July 2011) and Florida Super Lawyer® (July 2011) He is admitted to practice before all Florida state courts, the U.S. District Court for the Southern and Middle Districts of Florida and the U.S. Court of Appeals, Eleventh Circuit. You can reach Ken at firstname.lastname@example.org.
The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you. With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice. Articles may not be reprinted without the express permission of Brinkley Morgan.
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