November 8, 2019

Tracking Liability: What Can Employers Do?

by Jacqueline N. Rau, Esq. & Justin M. Burns, Esq., Dinsmore & Shohl LLP

According to the U.S. Department of Labor, nearly 30 percent of employees drive as part of their job duties. Because employers can be held accountable for an employee’s actions, what can an employer do to protect itself from future liability?

Some employers turn to Global Positioning Systems, which collect information related to an employee’s movements. The legality of such a practice, however, is unknown. Such a practice may be easier in employer-owned vehicles or on employer-owned devices, because Ohio employees have no expectation of privacy in employer-owned spaces. If GPS tracking is used in personal vehicles or other personal devices, or if information is collected after business hours while an employee is on personal time, an employee’s privacy may well be protected by the courts. For instance, in New York, a court found that installing a GPS device on a state employee’s personal vehicle was an unreasonable search. In 2015, a California woman sued her employer when she was terminated for uninstalling a GPS tracking application from her company-issued smartphone.

An employer who wishes to implement a GPS tracking program should consider the following best practices:

  • Have a written GPS-tracking policy outlining the business reasons for the policy, when and how employees should be monitored and how the employer plans to use the data;
  • Be familiar with state laws applicable to privacy expectations and tracking in the state where employees will be monitored;
  • Only use GPS tracking in employer-owned vehicles or devices;
  • Only monitor employees to the extent justified by a business need;
  • Notify employees of the consequences of disabling a GPS device without permission;
  • Have employees acknowledge receipt and understanding of the policy;
  • Post notices in employer-owned spaces advising employees that GPS monitoring is in place;
  • Store the data securely and only monitor during work hours and for a specific business purpose to protect employee privacy;
  • Monitor the storage of GPS-collected data, because such data may be discoverable in litigation and subject to existing data-retention policies.

Rau

Burns
In 2015, a California woman sued her employer when she was terminated for uninstalling a GPS tracking application from her company-issued smartphone.