New technology means it is easier than ever to use GPS tracking to keep track of the locations of your employees. This could be critical to productivity in positions where employees often work off-site and must be trusted to make productive use of their time. GPS tracking, however, raises privacy concerns under the California constitution, and it requires employers to observe certain limitations.
Legal Precedent: Moreno v. S.F. Bay Area Rapid Transit District
The Moreno v. S.F. Bay Area Rapid Transit District case is an important legal precedent that provides two of the primary legal principles applicable to determining the legality of GPS tracking:
Tracking a user through an ID number does not raise the same privacy concerns that tracking a user through his personal information does.
Chip implants, permanent implants that are inserted under the skin, raise acute privacy concerns because they are invasive and can be used to track employees 24/7. They might also raise religious freedom concerns since some conservative Christians are already identifying chip implants as the “mark of the beast” described in the Bible. Penalizing an employee who refuses to use an implant for religious reasons might raise First Amendment concerns.
You enjoy much greater freedom to track the location of company-owned devices such as a cell phone. If all you are tracking is the location of the device itself, then it is generally permissible to track it even when the employee is off-duty. After all, tracking tells you only the location of the device, not necessarily the employee. Two caveats: (i) the same might not apply to tracking the location of a chip implant, and (ii) employees should still consent to tracking.
How Employers Can Protect Themselves against Liability
Observing the following guidelines should greatly reduce your legal risk:
Employees should be tracked by ID number, not by name or personal data.
Employees should be specifically notified that their location will be tracked, and their specific consent to tracking should be obtained.
Track employees only during working hours – even lunch breaks are off limits.
Take reasonable measures to prevent interception by third-party eavesdroppers.
Do not use chip implants.
Act Decisively to Mitigate Your Legal Risk
Privacy is a big deal in California, and state courts tend to show bias in favor of employees in the event of a dispute. Put these two concerns together and you could end up with the proverbial “perfect storm.” At CKB Vienna LLP, however, we can help you prepare and implement policies that can help you minimize the risk that a dispute will erupt in the first place and maximize your chances of victory should you be dragged into a dispute by an employee or a third party.