While the convenience of GPS-enabled devices is undeniable, there’s a flip side: they give employers a tool that can be used to track workers in real time. And at some point, that tracking crosses a line.

Smart phones, watches, vehicles and other GPS-enabled devices have become ubiquitous, inside and outside the workplace. 

Surveys found more than a quarter of U.S. companies provide employees with mobile phones; more than half use apps that enable mobile access to critical enterprise systems; and majority of companies expect their employees to use their personal devices for work purposes. 

But does that mean employers have the right to keep constant tabs on their workers? Definitely not. Three key legal areas offer help:

• Privacy laws
• Labor agreements
• Civil protections (tort law)

The frenetic pace of technology advancements makes for an ever-changing arena legally, and there are minimal court rulings to examine for answers regarding practical applications. But there are plenty of breadcrumbs suggesting limitations on employers who use GPS tracking.

Privacy Laws

In many places, employers generally have the right to monitor company-owned devices — phones, fleet vehicles, GPS-enabled tablets, etc. But California has more stringent privacy laws; privacy is among the inalienable rights listed in the opening section of the state constitution.  

Nailing down the practicalities takes some digging, however. The California Penal Code prohibits electronic tracking of a vehicle’s location or movements unless the “registered owner, lessor, or lessee of a vehicle has consented.” But that only partially addresses the issue.

Next year, the California Consumer Privacy Act takes effect, offering additional rights in terms of knowing what information is being tracked, how it’s being used/stored, and whether it can be deleted upon request, among other things. The act doesn’t differentiate between consumers and employees.

Labor Agreements

If an employee belongs to a union, the details are key in how the National Labor Relations Board handles each situation. Generally, employers need to work GPS tracking requirements into a bargaining agreement first. However, if the union has allowed employees suspected of wrongdoing to be investigated in the past, GPS tools used in such an investigation may be considered acceptable.

Civil Protections

U.S. Supreme Court Justice Sonia Sotomayor included stark words in her opinion in a 2012 case (United States v. Jones), “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”
She adds, “And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’”

Civil tort claims protect intentional intrusions in which people have a reasonable expectation of privacy and in ways that reasonable people would find highly offensive.

One for the Road

There seems to be a clear line if employers are tracking personal information outside of work hours and for reasons that aren’t directly tied to business. If employers don’t get consent, even with company-owned devices, they can end up in legal hot water. 

A 2015 case filed in Bakersfield — it settled, so we don’t know how the courts would have handled it — involved a smartphone app that tracked employees’ exact locations, even during off-duty hours. 

An employee was required to download the app on her smartphone, and when she asked how the tracking would be used, her supervisor admitted that employees would be monitored while off duty and bragged that he even knew how fast she was driving at specific times. 

She complained, comparing the app to a prisoner’s ankle bracelet. Eventually, she disabled the app; she was fired a few weeks later and subsequently sued. 

This all may seem ambiguous, but that could be good news: In this rapidly evolving area of law, there’s room for employees to help establish privacy benchmarks, as well as to recoup any damages. 

If your employer has been using GPS tracking in unsettling ways, contact Keller Grover for a free consultation. We’ll advise you of your rights and of your best course of action. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions for clients and class members.