This article was updated on July 19, 2018.

With the dawn of smartphone technology and the many "apps" that are now available for download, employers may question whether monitoring their workforce through the use of a smartphone GPS tracking app is an option for them. While there are no state or federal employee privacy laws that explicitly address the use of GPS tracking to monitor the whereabouts of one's employees, there are numerous state laws that may have an impact on whether, and how, an employer should implement such a practice.

State Laws

For example, almost every state recognizes an individual's common law right to privacy. In addition, some states have state constitutional provisions addressing a constituent's privacy rights. Some states also prohibit employers from obtaining and maintaining certain information from their employees (such as medical information or political affiliation information).

Employers who track their employees whereabouts during the work day may inadvertently be obtaining this sensitive information. Further, several states have "lawful off duty conduct" laws in place, which prohibit employers from discriminating against, or taking adverse employment activity against, an employee for activity engaged in lawfully while off-duty. Finally, at least four states have laws in place that restrict an employer's ability to monitor employee activity without first obtaining their employees' consent.

In light of the many different privacy protections that exist, it is wise for employers to consider all of the jurisdiction-specific laws that could restrict employee monitoring, and weigh the potential risks involved in implementing a smartphone GPS tracking system, before doing so. Keeping this in mind, we have developed best practice guidance aimed at covering all possible scenarios, and assisting employers with their compliance obligations.

4 Best Practices

Once you have considered the privacy laws in the jurisdiction in which you plan to implement GPS/smartphone tracking, there are a number of steps you can take in order to avoid noncompliance with these laws:

1. Obtain authorization
Even if not required by law, consider obtaining written authorization from employees to install and use GPS tracking on their cell phones.

2. Notify employees
Whether you require consent or not, it's best practice to put employees on notice of the monitoring. This can be accomplished by making the notice the subject of a separate communication to employees (this would be the preferred approach), and also by placing such notice in a workplace monitoring policy.

In fact, your organization should already have in place an electronic systems policy that notifies employees that the organization's electronic systems and devices are subject to monitoring and inspection by the business at any time and that there is no expectation of privacy. If you anticipate using business provided smartphones (or smartphones subsidized by the organization) to track employees, you should update your policy to include a notification of business provided or business subsidized smartphone tracking. The policy should also require a written acknowledgment by the employee consenting to and understanding that the business property they are using will be monitored by GPS. As with any policy, you should enforce it consistently.

Any notice (whether by policy or written communication) should clearly indicate which particular devices will be equipped with GPS technology, when the employees will be monitored/when the system will be active, what information will be gathered and how the information will be used (what is the benefit to the employer/ the legitimate business interest).

3. Limit access
You should consider limiting access to GPS tracking information to those who have a clear business need-to-know (and indicate in your policy that will have access to this information).

4. Decide if it's right
Carefully weigh the risks of GPS monitoring of off-duty activities against the business need for the information and be careful not to use this information to punish off-duty conduct. In this regard, it is a good idea to provide employees with instructions on how to turn-off the tracking technology to ease employees' concerns about being tracked during off hours.

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