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Tracking and monitoring individuals’ activities is becoming more common, largely because the technology is less expensive and easier to use, and the information derived can be very interesting and beneficial. The NFL recently announced it would be placing Radio Frequency Identification tracking chips on players during some games to generate precise positioning data. Additionally, law enforcement has been using cell phone location technologies to quickly find missing people. Like the NFL and law enforcement, employers in construction and multiple other industries are using GPS technologies to track and monitor the activities of employees when they are working away from the office.

While GPS technologies provide employers with useful information to ensure employees are properly engaged in appropriate work-related activities when they are at a jobsite or otherwise working away from the office, they also can provide information about their non-work-related activities. This is where problems can arise.

By and large, employees expect employers to track or monitor what they do in the workplace. For example, most employees are aware that their activities when using a company-owned computer are likely being monitored. However, most employees do not want their employers to track or monitor what they do on their personal time. Employees have an expectation that such information is private and believe it is none of their employer’s business.

Construction employers have many legitimate reasons for wanting to track or monitor employee activities. Employers want to ensure that employees comply with company policies and procedures, applicable laws and government regulations.  When employees use company-owned vehicles and equipment, employers want to ensure they are being used for approved work-related purposes. In this regard, employers place GPS devices on vehicles they provide to employees who work remotely to ensure they are being used primarily for business and to reduce insurance-related risks. Construction employers also have an interest in maximizing the return on their investment in vehicles and equipment, which can be achieved through information obtained using GPS technologies. Consequently, many construction companies place GPS devices on delivery vehicles to obtain information useful in determining delivery and pickup times. In addition, some companies use the location tracking chips in electronic devices such as cell phones, laptop computers and tablets to find the mobile devices if they are stolen or lost.

When tracking or monitoring employee activities away from the workplace using GPS technologies, employers can receive information concerning employees’ private and personal non-work-related activities (sometimes inadvertently). For example, employers could receive information about where employees go and what they do on weekends, evenings, vacations and holidays. Also, employers could receive information about employees attending a union meeting or about their religious preferences from information relating to the church, synagogue or mosque they attend.

Employees have concerns that employers could use the information provided by tracking and monitoring devices to take adverse employment actions against them. If an employer receives such information, there is nothing stopping an employee from filing a charge of discrimination, an unfair labor practice charge or a lawsuit claiming a violation of the employee’s right to privacy, even though it may not be true. In any case, the employer is going to have to expend money to show that it did not base its decision or actions on any unlawful reason.

To avoid legal claims and to prevent abuse of employee tracking and monitoring technologies, construction employers should develop, distribute and implement a policy notifying employees that their whereabouts and activities are being tracked or monitored. To develop a clear policy, employers must first identify the legitimate business interests they are seeking to protect.

Next, employers should draft a narrowly tailored policy that protects their legitimate business interests while not encroaching on the privacy of employees during non-working hours and activities. In this regard, an option available to employers is requiring employees to activate the tracking or monitoring device when their workday starts and to deactivate it when their workday ends. Employers also should include in the policy a commitment to limit the collection and use of information obtained to only that which furthers their legitimate business interests. 

Finally, employers should obtain a written acknowledgment from employees stating that they consent to the tracking or monitoring and understand the policy, which should prevent them from later contending that unknown rules were imposed on them.

The preparation and implementation of an employee tracking and monitoring policy must be done with care to achieve a balance between protecting the legitimate business interests of the employer and the privacy rights of employees. Once a policy is implemented, it is very important that employers ensure that GPS technologies are not abused, information obtained is protected from unauthorized distribution and use, and the policy is uniformly enforced to avoid legal claims.

Tracy L. Moon, Jr. is a partner in the Atlanta office of Fisher & Phillips LLP. For more information, call (404) 240-4246 or email tmoon@laborlawyers.com.

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