GPS on rise; Workers' complaints may follow

HR Magazine, April, 2005 by Diane Cadrain

Employer use of global positioning system (GPS)-based employee monitoring is a wave that hasn't even begun to crest. But privacy experts are saying it's the prime work-place issue to watch in 2005. And as GPS use grows, so does controversy over whether it threatens employee privacy. Employers, system providers, privacy experts and unions have just begun squaring off on the issue, which promises to offer a heated debate in the coming months.

"Use of GPS in the workplace is already significant, and it's growing even more because the cost has dropped," said Michael Swiek, executive director of the U.S. GPS Industry Council. "And it's extraordinarily reliable: There's never been an outage." But does it violate employee privacy?

"It's a receive-only system. It just tells you a position. What the recipient wants to do with the information is another ballgame."

The GPS is a navigational system consisting of 24 satellites orbiting the earth, sending information to receivers on its surface. The satellites, launched by the U.S. Department of Defense, are now controlled by a joint civilian/military board of the federal government. They transmit radio signals which, when received by a device mounted in a vehicle, calculate the vehicle's position on the ground and relay that information to a computer at a business's home base.

Federal law requires all cell phone carriers to offer GPS capabilities, and many consumers who use GPS do so through their cell phones. The information is a boon to boaters, lost drivers, worried parents--and employers whose businesses depend on having employees on the road.

A Fast-Growing Market

And there are a lot of employees out there being tracked by GPS devices or ripe for such monitoring. @Road, a Fremont, Calif., provider of GPS technology, estimates that the number of mobile workers in the United States will grow from 92 million in 2001 to 105 million in 2006. With that big an employee base outside the four walls of the workplace, more and more employers are using GPS to monitor the movement and flow of employees, goods, services and transactions.

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Better customer service motivated Linda Wallace, co-owner of Ultra Modern Pool and Patio of Wichita, Kan., who employs 35 to 50 people driving a fleet of seven trucks, to use GPS. "I decided to use it for better tracking," she said. "I wanted to see how much time was spent on each job. We've had a few problems in the past--people weren't where they said they'd be. With GPS, we can defend ourselves to the customers. We know how fast the drivers drove, what route they took, and how long they spent on each job."

A Legitimate Employer Tool

Of course, employers can also use GPS to monitor employee malfeasance--unauthorized moonlighting, unnecessary stops, inefficient routing, poor use of time, speeding and excess overtime. Even privacy experts say that employer use of GPS tracking as a basis for adverse employment action is legitimate.

There aren't a lot of statutes or court decisions on the use of GPS as a work-place monitoring tool. So far, only Connecticut requires employers to give advance notice of electronic monitoring.

Legal experts say that a court presented with an employee claim of invasion of privacy based on workplace use of GPS would probably rely on the analysis used in other types of workplace privacy claims and would likely balance the needs of the employer with employees' expectations of privacy.

The needs of the employer start with an analysis of whether the monitoring is sufficiently related to a job function or the employee's fitness to perform that function. If there's a sufficient relationship with either factor, the court might balance the need for the information with the employee's right of privacy, say experts. Factoring into the decision are the nature of the job and the degree of importance of the information.

The employee's expectation of privacy could depend on the degree to which the employee has notice of the monitoring and the times of the monitoring. Monitoring that extends into private time, such as breaks, lunch periods and nonwork hours, and into private places, such as rest and changing rooms, likely would raise more significant privacy concerns, say experts.

Mark Rowe, senior research associate at the Center for Business Ethics of Bentley College in Waltham, Mass., said that GPS use "seems fair and reasonable when you're trying to get a package from one place to another.

"The most important detail of putting in a GPS system is communication, which is the underpinning of trust. There needs to be consultation between employer and employee to establish a reasonable ambit for the monitoring process. With that foundation of trust, it's easier to manage."

DIANE CADRAIN, J.D., IS A FREELANCE WRITER BASED IN WEST HARTFORD, CONN., AND A MEMBER OF THE HUMAN RESOURCE ASSOCIATION OF CENTRAL CONNECTICUT.