Where’s My Worker?: The Use of GPS Tracking Devices by Employers to Locate Employees
In today’s society, employers are perpetually asking for status reports, updates, progress reports, etc. Employers constantly want to know what their employees are doing, who they are talking to, what they are working on, and even where exactly they are. This makes sense in terms of productivity; if an employee is on the clock it is expected that they would be performing work for the employer as to not waste precious time and money. It particularly makes sense in industries revolving around deliveries, travel, and the use of employer-owned vehicles. But when does employer tracking of an employee’s whereabouts by use of technology go too far?
It is not uncommon for employers to provide their employees with cell phones, laptops, or tablets in order to perform their work more effectively. However, most of these products have some kind of GPS tracking system located within them, which an employer may be using to locate their employee. It is quite understandable that an employer would want to know where their employee is when the employee is on the clock and getting paid, but with the rise in telecommuting and employees taking their work home with them, the question has arisen as to at what point employers must refrain from tracking their employees. Many employees that are provided with work phones keep those phones turned on and on their person at all times, even if they are not necessarily performing work-related duties. Many employers provide these phones with the goal that the employee is able to be contacted at any time, but does this mean the employer should be able to track the employee at any time as well?
The use of GPS monitoring and tracking is an issue the Supreme Court recently considered in United States v. Jones. [i] Although the case did not specifically concern employer tracking of employees, it did lay out some helpful guidelines for this emerging issue.[ii] United States v. Jones established that placing a GPS tracking system on a suspect’s car constitutes a search under the Fourth Amendment; therefore, police officers are required to obtain a search warrant before attaching a tracking device to a suspect’s car.[iii] This case makes it seem that the tracking of an employee by a GPS system is most likely unconstitutional.
However, the Supreme Court in the case of City of Ontario, California v. Quon held that it was constitutional for an employer to read the texts sent and received on employer-owned and issued pagers.[iv] The Court reasoned that, “Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable.”[v]
Although neither of these cases deal directly with the tracking of employees by employers, they help to give some guidelines to employers regarding tracking employees. For example, if an employer is tracking an employee for a “work related” purpose, as laid out in the Ontario v. Quan case, then the tracking is most likely permissible. However, it is almost guaranteed that in upcoming cases the question is bound to arise as to what is a “work related” purpose, which is something employers should be keeping their eye on.
Many states have also introduced laws to help deal with the issue of tracking individuals. For example, California Penal Code §637.7 states, “No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.”[vi] Although, there are some exceptions to this law, including instances where consent is given or the lawful use of an electronic tracking device by a law enforcement agency.[vii] Thus, employees need to be wary of any consent forms they sign. Connecticut General Statute §31-48d states, “Each employer who engages in any type of electronic monitoring shall give prior written notice to all employees who may be affected, informing them of the types of monitoring which may occur.”[viii] This statute also provides an exception where “an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer’s employees, or (iii) creates a hostile workplace environment, AND (B) electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without giving prior written notice.”[ix]
While there is not always a clear answer just yet as to what is explicitly permitted and what is not, it would be helpful for employers to keep these cases and laws in mind when determining whether or not to use GPS tracking to locate an employee. Employers must research federal and state laws, as well as case precedent before tracking an employee in order to ensure they are not violating the law or the Fourth Amendment.
[i] United States v. Jones, 132 S. Ct. 945 (U.S. 2012).
[ii] Tracking Down Employees. Business NH Magazine (February 4, 2013), http://millyardcommunications.com/index.php?src=news&refno=3572&category=News (last visited January 9, 2014).
[iii] United States v. Jones, 132 S. Ct. 945 (U.S. 2012).
[iv] City of Ontario v. Quon, 130 S. Ct. 2619 (U.S. 2010).
[v] City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (U.S. 2010).
[vi] Cal Pen Code § 637.7.
[viii] Conn. Gen. Stat. § 31-48d.
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