Immediacy, convenience, accuracy—these are characteristics of GPS technology that make it attractive to employers for the purposes of tracking employees: Bosses like having a way of knowing where an employee is. Much of this has to do with the need for productivity—seeing who is and isn’t performing commensurately with their pay and making decisions to fire some, promote or give raises to others, and more. These legitimate needs of business, namely in the actions employers take to meet them, can be at odds with the rights employees have, or think they have, to privacy in the workplace.
Tracking, Monitoring, Watching, Listening…
As Workforce Magazine reported, two studies conducted by Aberdeen Group in 2012 found that 62 percent of employers with field employees were tracking staff by way of GPS technology. It’s an increase of more than twofold since 2008, and the percentage has probably risen again. That’s because employers, yes, have every incentive to pursue a glimpse into their workforce’s on-the-job behavior. At the crux of it is their need to know which employees are doing their jobs—and which employees are not.
Plenty of technology helps with this: Widely available, low-cost applications enable employers to track employees’ Internet usage, for instance. It’s logical that GPS technologies have joined the ranks of tools employers use to keep tabs on employees, especially mobile workers. Examples are public works employees, delivery truck drivers, and more. White collar professionals may find their on-the-job movements under their employer’s watchful eye, too. Traveling salespeople and field workers of various kinds come to mind: engineers performing duties at a construction site, home health care professionals such as visiting nurses, and others.
Less apparent, but just as applicable, is the example of handheld time clocks, which mobile employees might use to punch into and out of their shifts. Large manufacturers of technology for human capital management equip these devices with GPS, enabling an employer to see whether an employee has indeed arrived at a worksite before she clocks in for the related work.
And there’s precedent for employers to consider an employee’s behavior off the job, too, as grounds for dismissal. Employers’ monitoring of their employees’ social media activity in general has become commonplace. In October, Law 360 reported that “an employee was fired from Wal-Mart for commenting on another employee’s Facebook posts in violation of the company’s social media policy, which prohibits posts that are ‘unprofessional, insulting, embarrassing, untrue [or] harmful.’”
Employees’ Right to Privacy vs. Employers’ Need for Productivity—and to Fire
At the center of this debate are battles over privacy and, more theoretically, disagreements over the extent of an employer’s sway over and right to know employees’ behavior, and when. In its highly informative article, the Nexus Journal of Law and Public Policy Blog presents an explanation behind pertinent court cases from the past two years. Here’s a synopsis:
Though unrelated to employers’ use of GPS technology to track workers’ on-the-job whereabouts, the Supreme Court ruled, in United States v. Jones, that law enforcement officials must obtain a warrant in order to place any GPS-based tracking device on, for example, a suspect’s vehicle. In the court’s opinion, the activity constitutes a search, thus placing it under restrictions in accordance with the Fourth Amendment. The Nexus Journal notes that the “case makes it seem that the tracking of an employee by a GPS system is most likely unconstitutional,” but goes on to summarize another Supreme Court case: “City of Ontario, California v. Quon held that it was constitutional for an employer to read the texts sent and received on employer-owned and issued pagers. The Court reasoned that, ‘Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable.’”
This appears to clarify matters, suggesting that GPS technology falls under similar provisions of the law. As smartphone use has spread, everything that handheld computing devices enable and contain has, too. This includes GPS technology, apt to reside on an employee’s employer-owned smartphone.
Zeroing In: Is GPS Tracking of Employees Here to Stay?
Yes, it probably is. Three out of every 10 respondents to PwC’s 2014 report titled “The Future of Work: A Journey to 2022” say they’d be happy for their employer to have access to their personal data. That’s a number likely to rise as the technology that underpins employers’ access to employees’ data—including their geolocational data—continues to mature. It’s difficult to believe corporations will relinquish their ability to use GPS as a tool to monitor an employee whose whereabouts bears on his performance. Is this knowledge of their employees’ whereabouts an employer’s for the taking, no questions asked? Though it continues to evolve, case law appears to reveal a trend moving in employers’ favor.