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Is it Legal to Track Employees Using GPS?

An employer looking at a map of GPS coordinates

Managing employees has never been easier with the introduction of online time tracking. Managers no longer have to wonder where employees are or what they are doing– all information is available in real-time. Tracking location using GPS is one of the most significant features of employee tracking that employers take advantage of. This data can tell an employer exactly where an employee is working and when they are working. For instance, an employers can determine if an employee clocked in at the office, from the local Starbucks, or even from home. Employers also use GPS tracking to capture miles driven in company-owned or personal vehicles. The data collected is easy to obtain and gives employers transparency, but is it legal? 

Ronald Reagan introduced and regulated GPS tracking after the Soviet Attack on a Korean Civilian Airliner in 1983. GPS tracking ensured that airplanes didn’t accidentally cross the Soviet border and, more broadly, helped ensure peace.  Since then, GPS use has been expanded by the US government. Additionally, the government has given civilians access to GPS systems, which is why employers are able to track employee location. All of this new technological availability for employers has brought up predicable concerns about the personal privacy of their employees.

Current federal government GPS law   

Currently, the federal government does not have laws in regards to an individual’s privacy rights. There have been many legislative cases that have brought up the concern for privacy, but they still haven’t been resolved. Currently, there is only one ruling that protects civilian privacy, United States v. Antoine Jones (No. 10-1259).

In January 2012, the U.S. Supreme court ruled that law enforcement must obtain a warrant before attaching a GPS tracking device to a suspect’s car. This is in support of Amendment IV, which protects people against unreasonable search and seizure. For example, this means that an FBI agent cannot attach a tracking device to someone’s car without a warrant. Even this protection, affirmed repeatedly by the supreme court, has its flaws. Members of Congress have proposed legislation to prevent misuse of this information by law enforcement, companies, and individuals. However, as of October 2018, no comprehensive legislation on geolocation privacy has been enacted into law. There has also been no ruling of whether or not the fourth amendment protects geolocation rights. Overall, an employer is most likely able to track an employee’s location without violating privacy rights.

Current state government GPS law

Although federal law doesn’t provide a clear protection for individuals in the realm of geolocation, state governments have taken privacy rights into their own hands. Most states have implemented privacy laws, but even then, they are tricky to understand. For instance, California has a location privacy law:

“California Penal Code Section 637.7. That provision states: (a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person. (b) This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle. (c) This section shall not apply to the lawful use of an electronic tracking device by a law enforcement agency. (d) As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals. (e) A violation of this section is a misdemeanor.”

California Legislative Information

In short, an employer cannot track an employee’s whereabouts without their consent. If the employer gives notice and the employee consents, it’s likely that the employer can legally track their location.

Almost every state has its own privacy regulations which can be hard to interpret. Some states allow surveillance, while some don’t allow any sort of tracking. Some states allow tracking as long as it’s only used on a company-owned vehicle. Georgia, Arkansas, Kansas, and Missouri do not have any privacy laws. States such as Delaware, Illinois, Michigan, Rhode Island, Tennessee, Texas and Wisconsin prohibit installing a location tracking device on a vehicle without the consent of the vehicle owner. Whatever the case is, employers should beware and understand the laws in their state. If not followed correctly, misuse of GPS tracking can lead an employer to court. 

Why is the law so confusing?

The law’s interpretation can be confusing because there is no defined term for “privacy” and what constitutes as a breach of privacy. State laws are hard to interpret because all GPS tracking situations are different. For example, it might be okay for an employer to track an employee’s vehicle while on the clock, but they cannot track the employee’s whereabouts after the employee stops working. What happens if the GPS tracking service is still on while the employee is off the clock and the employee finds out? The employee could make case stating that privacy was breached, but a certain judge may not see it as a breach of privacy if the employee gave consent.

There are multiple court cases including Supreme Court cases that have created a buzz around this topic, but unfortunately there is no clear answer as to what runs afoul of the fourth amendment and what doesn’t– this is still up to individual judges. 

What should employers do?

First, speak with your local labor board to ensure that you are following your state’s privacy laws correctly. Once you understand what you can and cannot do, create a policy at your workplace that complies with these rules. Here are some tips:

  • Be aware of issues raised by unions. Unions tend to have their own privacy rules.
  • To protect yourself and your business, provide employees with written notice about GPS tracking. Be clear to tell employees if and when they or their vehicle is being tracked.
  • Limit tracking to work hours only. Unfortunately, a lot of time tracking companies that track GPS do not stop location notifications once the employee is clocked out. This is why it’s important to invest in a time tracking service like that does not track employees when they are off the clock.
  • Develop a policy that sets limits and justifications for GPS tracking. Let employees know the consequences of disabling GPS on the job if necessary. 
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