Small Business: It's 10 O'Clock. Do You Know Where Your Employees Are?

November 27, 2008

By Philip I. Frankel, Small-Biz Focus, November/December 2008

This article first appeared in the November/December 2008 issue of Small-Biz Focus produced by Support Services Alliance, Inc. (SSA).

In this world of constantly evolving technology, most of us are very familiar with the benefits of Global Positioning Satellite (GPS) technology. In addition to its usefulness in navigating unknown areas, many employers have discovered that utilizing GPS technology in company-owned vehicles and cell phones has led to widespread increases in employee productivity. While some argue that GPS technology is an invasion of privacy, there is no federal law prohibiting employers from using it. In addition, courts have repeatedly rejected employees claims based on state privacy laws.

Despite the potential difficulty in asserting a valid invasion of privacy claim based on GPS monitoring, employers can eliminate the possibility of litigation entirely by simply advising employees that the technology is being used in company vehicles and cell phones. Moreover, by continuing to use such property, the employee waives his or her right to privacy. Most companies have a policy permitting the monitoring of an employee's use of company equipment, including telephone calls and email messages. Similarly, employers should view the monitoring of company-owned vehicles and cell phones in the same way.

Surprisingly, even without providing notice to employees, at least one employer successfully argued that its need to monitor employees outweighed the employees' right to privacy. Last year, an Administrative Law Judge upheld misconduct charges and recommended termination of a New York Department of Education supervisor. After receiving reports that the DOE employee was not at scheduled sites, the employer began tracking him using the GPS on his work-issued cell phone. The subsequent investigation revealed that the employee had left work early on at least 80 occasions and that he was falsifying timecards. The employee argued a violation of privacy, but the court was not convinced based on the fact that he chose to use DOE's cell phone rather than provide his own. Moreover, despite the fact he was never told that the phone could be used for disciplinary purposes, the employee had no expectation of privacy, since a principal reason for adding GPS to DOE-issued phones was to aid in locating supervisors in the field.

A similar situation occurred in New Jersey in 2001. In response to numerous complaints by the public about police offices not performing their duties, an internal affairs officer placed GPS devices in several patrol cars. The investigation revealed that the officers were actually loitering over meals or hanging out in parking lots whereas their official logs listed them as patrolling township streets or watching for speeders on local highways. Consequently, four of the officers pled guilty to filing false records and a fifth was convicted at trial on a records violation.

Generally, a GPS system can be an invaluable tool in evaluating employee efficiency. However, employers should limit monitoring to the employee's work time and restrict follow-up questions to work-related issues. Many employers permit the devices to be shut off during meal breaks and other off-the-clock time. Most importantly, all employers should provide every employee with a written policy summarizing the extent of monitoring and reserving the right to discipline based on location monitoring.