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. 

Imagine going online to look for home loan information. You find a website and enter some basic information, then click “Get a free quote” – and the next day, your phone is besieged with calls and texts hawking mortgages.

A recent court decision shows that in this situation, it’s not enough for a company to have a website disclaimer about telemarketing; the disclaimer must be clear and conspicuous. If it’s hard to find or hard to read, consumers may be entitled to damages under the Telephone Consumer Protection Act (TCPA).

What Happened

On July 5, 2017, Samuel Barrera visited www.GuaranteedRate.com to request a mortgage quote. He filled out a form and entered his cell phone number. He then clicked on a “Get your free quote” button.

Starting the next day, Barrera said, he was “bombarded” with telemarketing calls from Guaranteed Rate. He said they were annoying, harassing and invasions of privacy. He filed a putative class action against Guaranteed Rate in federal court in August 2017, alleging the company violated the TCPA.

Guaranteed Rate subsequently filed a motion to dismiss Barrera’s lawsuit. The company said Barrera gave “express written consent” to receive the calls when he entered his phone number and clicked the button, because there was a disclaimer at the bottom of the page.

However, Barrera argued, the disclaimer was “inconspicuously hidden” – beneath the “Get your free quote” button and in “barely legible font.” (It was also referred to as “Lilliputian language.”) Because he could not see the disclaimer, Barrera said, the website was not an appropriate method for collecting his express consent.

The court agreed. In October 2017, Judge John Robert Blakey denied Guaranteed Rate’s motion to dismiss. The case will proceed.

How the Law Applied

The TCPA protects consumers by restricting telemarketing activity and the use of automated telephone equipment. For example, it prohibits calls to homes before 8 a.m. or after 9 p.m., and it doesn’t allow calls using recordings. Telemarketing companies can skirt the TCPA restrictions if consumers provide “prior express consent” – the core issue in this case.

Consent must be obtained through a “clear and conspicuous” disclosure – “a notice that would be apparent to the reasonable consumer.”

Guaranteed Rate had a disclaimer, but because of its size and position, the court said it was “unlikely that [Barrera] knew, when he clicked on the quote button that he was actually opening the door to a barrage of autodialed telemarketing calls to his cell phone.” Simply providing a phone number was not consent, the court said.

What It Means

This court decision shows that just having a disclaimer isn’t enough to give a company free rein over consumers’ phones. Indeed, the disclaimer must be legible and in a prominent location, “separate and distinguishable from advertising copy or other disclosures.”