Tracking Down Employees

Presumably, you're hiring employees you can trust, but, even so, sometimes there's a temptation to check on what they are actually up to. It's easy enough to do with today's global positioning systems (GPS) and GPS systems built into smart phones and laptops-devices that are often company owned. But before engaging in CSI sleuthing, consider the legal ramifications.

By following their employees' digital footprints, bosses hope to improve efficiency and confirm employees are actually using company property for work. However, their efforts may lead them into a legal bind if the tracking is not limited to work-related activities and is not laid out as a policy in employee handbooks.

Lessons from the Law

Earlier this year in U.S. v. Jones, the U.S. Supreme Court grappled with the evolving issue of privacy and technology. The court ruled that law enforcement must obtain a search warrant to track a suspect's vehicle using electronic technology. While the Jones case did not directly address an employer's monitoring of employees, it offered some guidance that private employers should consider.

In Jones, the FBI and District of Columbia Metropolitan Police Department task force suspected the defendant of drug trafficking. The government obtained a court warrant to put a GPS tracking device on his car, but did the tracking outside the geographic and time window the warrant authorized. 

The government later indicted Jones for possession of and conspiracy to distribute cocaine, using information obtained through GPS tracking. Prior to trial, the defendant moved to suppress the GPS evidence. The trial court kept out the evidence obtained during the times the vehicle was parked near Jones' property, but allowed all other GPS data, finding that a person who travels in a car on public streets has no reasonable expectation of privacy.  

The Court of Appeals reversed Jones' conviction. Upholding the reversal, the U.S. Supreme Court held that evidence obtained by the warrantless use of a GPS device was inadmissible in the criminal trial because it amounted to an illegal search prohibited under the Fourth Amendment to the United States Constitution, which protects against unreasonable search and seizures.

Two years earlier, the U.S. Supreme Court in City of Ontario, California v. Quon considered whether a public employer had violated an employee's Fourth Amendment rights when it obtained and reviewed text messages sent and received on employer-owned and issued pagers. It held the search was reasonable and not a violation of the employee's Fourth Amendment rights because the search was motivated by a legitimate work-related purpose, was limited in scope and had been communicated in advance as part of the employer's policy.  

Granite State Law

While those two cases demonstrate the limits of the Fourth Amendment, there are also state laws to consider. The NH Constitution contains a right to privacy that applies to the private sector. Some states have passed laws specific to GPS tracking. In NH, HB 445, which would prohibit an employer from using electronic devices to track employees without consent of the employee or a court order, was referred to an interim study committee, which in October recommended it for legislation in 2013, voting 12-0.

Here are some things to consider before using GPS to track an employee:

• Identify the legitimate business interests and benefits of such monitoring. For example, employers may use GPS to improve efficiency of shipping or driving routes by monitoring driving times and routes.  Tracking can also help determine if employees are adhering to policies and not using company vehicles outside of work activities.  
• Have an electronic systems policy that notifies employees that the company's electronic systems and devices are subject to GPS monitoring and inspection by the company at any time and that there is no expectation of privacy. The policy should require a written acknowledgement and consent form signed by the employee.
• Consider the impact of GPS tracking on employee morale and weigh the benefits and disadvantages of using it.
• Companies using GPS to track employees should not track employees on personal time-even if they have a company cell phone. That could lead to the collection of private data on the employee's whereabouts.  As noted in a concurring opinion in Jones, GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. Employers must be careful not to obtain such personal information and only use information gathered for proper purposes.

Jennifer Parent is a director in the Litigation Department of McLane, Graf, Raulerson & Middleton PA, which has NH offices in Concord, Manchester and Portsmouth, as well as Woburn, Mass. Parent can be reached at 603-628-1360 or Jennifer.parent@mclane.com.  To learn more, visit www.mclane.com.