Tracking Employees by GPS: A Dangerous Road for Employers

Thursday, March 31, 2016 | Published by

In today’s world, employers have access to otherwise inaccessible information. Many employees now have cell phones, laptops, or other technical devices to increase efficiency. Some employers monitor their employees’ productivity through smartphone apps.

On several occasions, Courts in the United States have ruled on the issue of GPS tracking in criminal matters and its compatibility with the privacy rights of citizens. However, there are very few cases related to GPS tracking of employees during working hours1.

In the Spring of 2015 in California, an employee learned that her employer was tracking her movements through a GPS, regardless of whether she was working or not. A month before the lawsuit was filed, her company asked that all employees download a GPS app to their smartphone. The application website advertised the following, “See the location of every mobile worker on a google map and drill down on an individual worker to see where they have been, the route they have driven and where they are now”. The employee asked one of her supervisors if she would be monitored during non-business hours and the supervisor confirmed. The supervisor also told her that she was supposed to keep her phone on 24 hours a day, 7 days a week2. The employee subsequently uninstalled the app and was fired by the company a few weeks later. She then sued for violation of privacy, among other claims3.

Employers can gain valuable insight from GPS tracking, such as managing time and attendance and overtime data as well ensuring compliance with labour laws, safety regulations (traffic laws) and company policies. GPS tracking also fosters efficiency through streamlined travel in logistics and other delivery-based industries (meal-delivery, etc.)4.

Across the globe, there is an abundance of legislation citing the boundaries of such practices. Three elements stand out:

1) The employer should ask and obtain his employee’s consent to install a tracking tool.

2) The employer should be careful to remain within the scope of what is permitted by law. For instance, the French data protection authority authorises the installation of such geolocalization devices only in specific cases, such as the safety of the goods, the employee or his professional vehicle or to follow up on services linked to the vehicle (i.e. school buses)5.

3) It is important to balance the interests between the employee’s privacy, the reasonableness of the intrusion into one’s private sphere and the legitimate business utility of such devices.

Companies should also bear in mind that in some countries, a prior authorization from the regulatory data protection body is required to install these types of devices.

In France for instance, the employer must follow a three-step procedure in order to monitor its employees with devices. First, the employer must consult with the Health, Hygiene and Safety Committe, the staff representatives and the Works Council prior to implementing any sort of geolocalisation device. Then the employer must file a declaration to the data protection authority. Finally, the employer must inform the employee about the installation of such devices, the data that will be collected and ask for his/her consent.

While all professions are different, surveillance systems are equally bias. Therefore, employers should find the right balance between their need for productivity through surveillance tools and their employee’s right to privacy. Hence, one should first acclimate the surveillance tool to the type of task they require from their employees. Second, employers should be aware of the fact that the initial objective of the surveillance system should prevail in order not to risk interfering with their employee’s privacy.

[1] Moon, Lilian Chaves “Key consideration when monitoring employees using GPS tracking devices” Jackson Lewis Workplace Privacy, Data Management & Security Report, September 8, 2014.
[2] Arias v. Intermex Wire Transfer, 15-cv 01101 (E.D. CA, 2015)
[3] Gardella, Adriana “Employer Sued For GPS-Tracking Salesperson 24/7” Forbes Entrepreneurs, June 5, 2015
[4] Austermuehle, Elizabeth “Monitoring your employees through GPS: what is legal and what are best practices?” Lexology, February 18, 2016
[5] Travail & données personnelles “La géolocalisation des véhicules” The Commission nationale de l’informatique et des libertés, January 2013

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