Employee location tracking is the new normal in the modern workplace.
The problem is that many employers don’t have a clue about the rules.
They dive headfirst into tracking employees without knowing the law and end up in legal hot water.
New data shows that 78% of employers are now using monitoring tools to keep tabs on their staff. And that number is only going up.
This guide covers everything you need to know about employee location tracking legality before you implement any policies.
Key Takeaways
- What is Employee Location Tracking?
- The Law That Applies to Tracking Employees
- State Tracking Laws Employers Need to Know
- Creating a Location Tracking Policy
- Avoid These Mistakes to Prevent Lawsuits
What is Employee Location Tracking?
Location tracking for employees uses GPS technology to keep tabs on where they are at all times during their shifts.
Simple concept. But not so simple when it comes to the law.
Employers have some very legitimate reasons to track employee location. For example, location tracking can be used to verify that workers have actually shown up at a job site, optimize delivery routes to increase efficiency, or even make sure workers aren’t putting themselves in harm’s way. The tech is now an essential tool for businesses in field services, construction, and package delivery.
But here’s the catch…
Just because employers can track employees in theory does not mean they can track them however they like in practice. Laws regarding worker rights in California and elsewhere have become very complicated. The legality of employee location tracking will depend on where your business is located and how exactly you plan to track employees.
If you get it wrong it can cost you big time. Lawsuits, fines, and a lot of bad publicity.
The Law That Applies to Tracking Employees
Employers should know that there is no one single federal law specifically addressing GPS tracking in the workplace.
Great employers should also know that this is a big red flag. The reason? That’s because a number of different existing federal laws can apply to employee location tracking. The Electronic Communications Privacy Act (ECPA) prohibits the interception of electronic communications. Although the law doesn’t mention GPS specifically, it has been applied to location data that is transmitted electronically.
The Stored Communications Act (SCA) is another law that offers some privacy protections related to employee tracking. The SCA covers access to stored electronic communications and may also extend to stored GPS location data. Employers who access such data without proper authorization could be in violation of the SCA.
But wait… there’s more…
As mentioned before, the real devil is in the state-specific laws. Some states will require written consent. Others will demand some sort of notice before any tracking takes place. And in a few states, employers may have almost no obligations or restrictions when it comes to tracking employees.
In the simplest terms, employers must be aware of not only federal but state requirements before tracking the first employee.
State-Specific Requirements Employers Need to Know
GPS tracking laws can vary widely from state to state in the United States.
Some states are strict. Some are more relaxed. The most important thing to understand is that employers must know the rules in every state they have employees.
Below are some examples of states that have specific requirements employers should be aware of.
- California: This state is a big one. California has some of the strictest privacy laws in the country. Employers must have clear consent for location tracking even if it is a company vehicle. Tracking without proper consent can lead to serious legal trouble.
- Connecticut: Employers need to know about the Electronic Monitoring Act. This law requires employers to provide written notice to employees if they are engaging in electronic surveillance in the workplace.
- New York: Employers in New York also need to know their disclosure requirements. The state has very specific laws around monitoring employees’ digital activities. Explicit disclosure is required.
- Delaware: This one may surprise employers. Delaware also has specific employer requirements. Employers must give staff notice that monitoring is occurring.
Even in states that don’t have specific GPS tracking laws, other general privacy and workplace harassment laws may still apply. As a best practice, treat every state like it has strict regulations.
You should care, right?
Creating a Location Tracking Policy
The very first thing employers should know is that a comprehensive and thought out GPS tracking policy is the foundation of any legal compliance program.
Employers should know that employers without policies are simply asking for legal trouble. So what elements does a solid location tracking policy need?
Purpose Statement. Employers should know to clearly and specifically state why they are using tracking. Is it for route optimization? Work time verification? Safety purposes? Whatever it is, the reason needs to be clear and legitimate.
Tracking Scope. Employers need to know that they should also define the specific time frames that tracking will be in effect. Best practices recommend only tracking during working hours. Tracking outside of work or on breaks is generally unnecessary and can open employers up to legal risk.
Employee Consent. Employers need to get this one. Written consent should be obtained from every single employee. Even if the state doesn’t require consent, written agreements protect employers from later disputes.
Data Security. Employers should also make sure they explain how they are protecting employee data. Location information is sensitive data. Employers should be sure to describe how data is stored, accessed, and for how long it will be retained.
Access to Data. Finally, many employees will want to see the information you have tracked about them. Employers should make sure employees can access their own GPS logs. This transparency will help build trust and minimize employee resistance.
And above all, the policy needs to be in plain English. No legal jargon. No surprises. Be as transparent as humanly possible.
Avoid These Mistakes to Prevent Lawsuits
A lot of employers will try to do the right thing and end up making some critical mistakes.
Employers should know that here are the most important ones to watch out for.
Tracking Off the Clock. Employers need to avoid this one at all costs. Tracking employees after hours is a one-way ticket to a lawsuit. GPS tracking should be automatically disabled when an employee clocks out or on break. Tracking personal time is almost always illegal.
Tracking Personal Devices Without Consent. Company owned vehicles and devices are fair game. But personal cell phones and cars are not. Employers should make sure they have explicit written consent for tracking any employee owned equipment.
Secret Tracking. Employers should not track employees without their knowledge. It’s a temptation, sure. But it also leads to all sorts of employee anxiety and erodes trust. 56% of monitored employees report anxiety when being tracked. Secretive tracking is often also illegal.
Overlooking State Differences. Employers should know that what is allowed in Texas may be illegal in California. If you have employees in more than one state, you need a policy that accounts for the most stringent legal requirements.
Collecting Excessive Data. Employers should also avoid the temptation to collect more data than needed. Location tracking should serve a clear business purpose. Gathering data for no reason or in excess will just lead to more employee resistance.
Taking the Right Approach
Employers should know that the right approach is simple.
Do your homework and know the law. Create a policy that is built on transparency and consent.
Employers should know that the best policy is to be as open with employees as possible. Explain the why and how of tracking. Employees who understand the purpose of tracking are much more likely to accept it.
Employers should know that restricting tracking to business hours and purposes is a good rule of thumb. It eliminates many legal risks and shows employees you value their privacy.
Wrapping It All Up
Employee location tracking can be a big win for employers.
If you implement it correctly.
The biggest takeaways are these:
- Know the federal and state laws before tracking employees
- Obtain written consent from employees even when it is not legally required
- Restrict tracking to work hours and legitimate business reasons
- Create a crystal clear policy written in simple English
- Value employee privacy and build trust through transparency
Location tracking is not going away. Employers who do it right will benefit. Employers who try to take shortcuts will suffer.
Don’t cut corners.
