In recent years, courts have acknowledged and legislators have established an increasing level of privacy rights for workers.
For example, laws limit an employer’s ability to inspect employees’ bags, personal items and even lockers in break areas without prior notice as a workplace policy. Various laws also limit employers’ access to workers’ medical information and who within a company may access private information in an employee’s personnel files.
The latest frontier of workplace privacy involves geo-tracking, which entails surveilling an employee’s location through tracking capabilities on electronic devices. More than a dozen states having passed laws limiting such activity.
A good example is a new law recently enacted in New Jersey. Many employers may use tracking devices to monitor the whereabouts of sales personnel and others who work outside the office to make sure they’re spending their workday on work-related activities and to ensure properly documented expense reimbursement.
Under the New Jersey law, employers must first provide written notice to employees if they are knowingly using a tracking device in a vehicle used by an employee. The law defines a “tracking device” as one that’s designed or intended for the sole purpose of tracking the movement of a vehicle, person or device. The law presumably wouldn’t apply to smartphones and similar devices that may have tracking apps but have many other functions as well.
While the law does not allow workers to sue over impermissible location tracking, it does impose a $1,000 fine for the first violation and up to $2,500 for additional violations.
Other states with location tracking laws handle the issue a bit differently. California’s law, for instance, is quite a bit broader, defining an “electronic tracking device” as any movable thing that reveals its location by transmitting electronic signals.
And while New Jersey requires employers to notify workers of their intent to track their location whether the employee is driving a personal or a company vehicle, Michigan and Illinois only require employee consent if it’s a company car.
Even in states without explicit tracking laws, employers can still find themselves in hot water for surreptitious tracking. In a Nevada case, for example, an employee successfully sued an employer under common law invasion-of-privacy provisions when the company placed a tracking device on his car without his knowledge or consent.
Given that this is a developing area with constant changes in technology, it’s probably a good idea to notify employees of your intent to track no matter where you are and make sure that any information you collect is highly safeguarded.
Further, considering the potential risks of tracking, it’s a good idea to consult with an employment lawyer to review your policies to ensure they comply with specific laws on tracking and more general privacy laws in the states where you operate.