Tracking your employees with GPS in California? The law is changing!

With the creation of the extremely useful Global Positioning System - thank you U.S Navy- combined with the ubiquity of smartphones and their tracking apps, employers can now monitor their mobile workforce like no other time in history. This is an idea that 15 years ago was only a thought in the minds of people in the know. Yet, as technology changes and improves how we conduct our lives and business, new issues arise. Most people are now very aware of the issues surrounding privacy, most people remember the controversy surrounding Edward Snowden, the NSA leaks and the fierce debate that arose afterwards. As such, there are things to consider before using tracking technologies to monitor employees. In the U.S, these include constitutional rights of privacy, state criminal statutes, labour issues, and ethical claims.

In the following paragraphs, we aim to look at the case of California, answer some questions and give a summary for understanding the legal and ethical challenges of the GPS landscape.

Functionally, the constitution of the United States does not explicitly state the right to privacy. However, the U.S Supreme Court has formally announced that there is an implicit right for individuals to privacy from the government according to the First, Third, Fourth and Fifth Amendments. Yet, is there a right to employee privacy from their employer? The answer…, it depends. California law emphasizes privacy but the issue, as it relates to tracking employee locations, has not been decided concretely within the courts and is likely subject to change in the future.

Article 1, Section 1 of the California Constitution states“all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The recent California Penal Code Section 637.7. gives a further understanding of privacy from tracking stating: (a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person. (b) This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle. (c) This section shall not apply to the lawful use of an electronic tracking device by a law enforcement agency. (d) As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals. (e) A violation of this section is a misdemeanor.

An employer’s lawful ability to track employees, hinges on whether an employer is infringing on employee privacy rights. Suppose you employ someone with GPS device that tracks private time use of company assets without written disclosure and voluntary consent, this would likely result in liability to an employer.

Consider the case of Arias v. Intermex Wire Transfer, an employee sued their former employer, claiming that they were fired for uninstalling a GPS tracking app from a company-issued smartphone that was tracking her when she is not at work. The suit stipulated wrongful termination, invasion of privacy, among other claims, and sought over $500,000 in damages [2].

With the newly passed California Consumer Privacy Act (“CCPA”) also known as AB 375, going into effect on January 1, 2020, employers must now consider the disclosure obligations and potential liability that come with GPS tracking of employees going forward.
For employers to track employees, there are basic steps that need to occur [3][4]:

1. Make sure to comprehensively disclose or inform employees that their location will be known to the employer during work hours and require them to voluntarily consent to tracking their location.
2. Use software that associates the employee’s location with an ID number rather than more personal information.
3. Track locations only during work hours. If your employees are working day and night, make sure the app stops tracking locations during non-work hours, including breaks.
4. If you’re a public employer, comply with the Cellular Communications Interception Act. Gov’t Code § 53166. The Act requires “every local agency that operates cellular communications interception technology” to maintain reasonable security procedures and implement a privacy policy to ensure that the information obtained remains private
5. California employer’s using GPS to monitor employees should have policies carefully considering employee privacy issues. This includes a potential GPS tracking policy which would outline the legitimate business reasons for using GPS tracking and how the data collected will be used and safeguarded.
6. Store any tracking information securely, but in a way that can be quickly accessed and provided in response to employee requests for personal information under the CCPA.
7. Limit access to the tracking information to personnel who have a clear business need to know that information.

When discussing with employees the reasoning for tracking, employers should include things such as:

• Locating employees quickly and correctly for dispatch and tracking to new locations.
• Ensuring work is done -within reason- on schedule in order to correctly determine employee salaries and workload.
• Only accessing data from your employees that have are legitimate business interest and making certain that the employee’s expectation of privacy can in fact be offset by an employer’s property interests. For example, if an employee uses a business vehicle or device (e.g. smartphone), make sure it is disclosed that it is to be used for legitimate business activities or there is a voluntary written agreement over use outside of business activities.
• Improving performance with time and location tracking data. By using this data employers can help employees boost business productivity.

As always it is important to stay up to date with changing employee privacy laws and at Hellotracks we will continue to follow these and provide updates. However, it is important to note that the views expressed above are an understanding based on research of privacy laws regarding GPS tracking of employees and commentary from lawyers that operate within the field of employment law. These views do not constitute as legal advice. If you have further concerns about Californian employee privacy laws and protections, it is important to reach out to legal counsel.

^{[1] Linder, Douglas O. The Right of Privacy: Is it Protected by the Constitution? Accessed October 22, 2019. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html.
[2] Richard D. Lutkus, and Jared W. Speier. “Somebody’s Watching Me: Considerations in Employee GPS Monitoring.” California Peculiarities Employment Law Blog. Seyfarth Shaw , January 28, 2019. https://www.calpeculiarities.com/2019/01/24/somebodys-watching-me-considerations-in-employee-gps-monitoring/.
[3] Scott Hall, and Brandi Brown. “GPS Monitoring Of Employees In California: Do You Know Where Your Employees Are? Are You Allowed to Know?” Coblentz Law, March 14, 2019. https://www.coblentzlaw.com/gps-monitoring-employees-california/.
[4] Holly, Jennifer M. “There’s An App For That: Considerations in Employee GPS Monitoring.” California Peculiarities Employment Law Blog, January 26, 2017. https://www.calpeculiarities.com/2017/01/26/theres-an-app-for-that-considerations-in-employee-gps-monitoring/.}