Records of Potential Off-the-Clock Work Violations: GPS Tracking Devices

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Along with the ubiquitous nature of smart phones, employers are increasingly using GPS technology to track company vehicles to determine if employees working on remote job sites are where they are supposed to be and to locate missing vehicles and/or employees. While most employers tout the enhanced safety that GPS tracking can provide, many employees see GPS tracking as “Big Brother” using technology to invade their privacy.

While the use of GPS technology by private employers is taking off, the law has not caught up yet. At this point, we know that the Supreme Court, in the context of a criminal case, has held that the warrantless use of GPS tracking constitutes a “search” under the Fourth Amendment. United States v. Jones, 132 S.Ct. 945 (2012).

With respect to private employers in the civil context, however, there are a number of issues to consider before implementing a GPS tracking program. These include:

1. Whether the installation of GPS tracking, in the unionized context, is a mandatory subject of bargaining

2. If not, whether the effects of GPS tracking (e.g., discipline as a result of what is learned from GPS tracking) are a mandatory subject of bargaining

3. Whether a state-law claim for invasion of privacy is preempted by the Labor Management Relations Act

4. Whether an employee has a state or local right of privacy that would impact the employer’s ability to track

5. If so, whether the use of GPS tracking is “reasonable” under the circumstances

6. Whether advance notice to employees is required in the non-union setting before instituting GPS tracking

7. Whether having employees sign a GPS tracking/monitoring policy effectively waives any privacy rights employees may have

All of these issues are dependent on the applicable state law and the particular facts of each case (union v. non-union setting; terms of a collective bargaining agreement including strength of the management rights clause and bargaining history; the particular state laws at issue; and the facts of each case). More generally, however, we can anticipate that GPS monitoring cases will largely follow the results of similar prior cases involving the use of non-electronic monitoring of employees.

With respect to wage and hour laws, it is important to recognize that a GPS device may be used as a proxy for “working time” and arguably provide an additional record of time worked. That could pose challenges for those employees who are allowed to drive their company-owned vehicles to their homes overnight, and particularly those allowed to use company vehicles for incidental personal use.

Stay tuned for our next post in this series, in which we will discuss the risks and rewards of telecommuting.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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