Am I legally permitted to track the location of my employees using a GPS device on a cellphone or vehicle?
Monitoring employees through a GPS tracking system can raise serious issues with regard to California’s constitutional right to privacy, and may be a violation of California’s Penal Code as well.
U.S. Supreme Court Decision
As the U.S. Supreme Court noted in its 2012 decision in United States v. Jones (615 F. 3d 544), “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.”
The court recognized that details of an employee’s personal life, including doctor visits, meetings with an attorney and attendance at religious services, would be disclosed to whoever monitors the GPS tracking device.
Constitutional Right
Knowledge of an employee’s off-duty activities may be a violation of the California Constitution’s right to privacy, since in most cases such knowledge is unrelated to an employee’s job performance and therefore not of concern to an employer.
Tracking devices on an employer-provided cell phone could easily be used to monitor an employee during nonworking hours. Even a tracking device on a truck provided to employees for use only during the workday may report an employee’s location while on an off-duty lunch break.
Some time-clock apps that an employee may install on a personal phone at an employer’s request have built-in GPS tracking systems of which the employee may not even be aware. Each of these scenarios raises the question of whether an employer is intruding into an area where an employee may have a reasonable expectation of privacy.
Penal Code
In addition to the constitutional concerns, California Penal Code Section 637.7 prohibits any person or entity from using “an electronic tracking device to determine the location or movement of a person” via a “vehicle or other moveable thing.”
The law does allow an exception for vehicles when there is a written consent for use of the GPS device, but there is no similar exception for a “moveable thing,” such a cell phone.
Before establishing any GPS monitoring of employees, an employer would be wise to consult with legal counsel.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
