With the increase in wages and hour litigation particularly in Florida where the highest numbers of Fair Labor Standards Acts cases can be found, employers have begun to look for better ways through which they can track their employee’s work time. They do so in order to be able to defend themselves against any unpaid overtime claims made by the employee. Alongside this, employers have also been making use of monitoring devices and mobile apps to increase efficiency, to deal with issues relating to safety, ensure that employees comply with the policies of the company and for the protection of property owned by the company and for the purpose of customer services. The global positioning system (GPS) is one such device which has been implemented into vehicles, laptops, mobile phones and IPAD’s by companies for this particular purpose.
This issue of using the GPS system to track employees has been raised by only a few courts, however, most state that employers make use of this system on equipment which is owned by the company and that the employee should not have any expectations with regard to privacy in this matter. States such as Tennessee, California, Texas, and Minnesota have laws which prevent the use of tracking devices/software in mobile phones to track others. Exceptions to this law consist of the owner of the mobile phone giving consent or the vehicle to which the tracking device is attached.
Apart from the consent given by the employee, the employer should consider whether or not the employee using the device/vehicle has any expectations with regard to privacy or not. The expectations of privacy from the side of the employee needs to be balanced with what the employer wants along with how reasonable it is for the employer to intrude upon the privacy and the legitimate need for the employer to make use of the device. These aspects become of more importance when the GPS device is attached to the personal property of the employee or to the equipment owned by the company which the employee makes use of after work allowing the employer to track activities after hours as well.
Tracking of employees after work hours is considered to be an invasion of the privacy of the employee irrespective of the kind of equipment made use of and whether or not it belongs to the employee himself or to the company. When the tracking device works to gather information about an employee out of work hours, it may lead information about him which is personal to come to the knowledge of the employer thus breaking his need for privacy. Such acts could lead to the employer discriminating against the employee or could even lead to wrongful termination on the basis of off duty conduct.
Therefore, any information which is gathered by making use of a GPS monitoring system should focus on the job performance of the employee and should be disseminated to them when there is a genuine reason for them being told. Legitimate business purposes should be the only kind for which monitoring systems should be used and information should be gathered only during working hours provided that the employee is aware of this and that his/her expectation of privacy has already been spoken about. Policies should be drafted which explain these purposes and circumstances under which the employer would monitor his employees, the company’s right to monitor employees while they make use of property owned by the company, the monitoring capabilities of the device issued by the company along with employees not expecting privacy to be maintained while using these devices.