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Abstract

This Article examines employee location tracking through smart phone apps and GPS devices attached to or embedded within an employee’s personal or company vehicle. For each form of tracking, this Article provides separate frameworks for employers to follow when conducting individual employee misconduct investigations and when tracking an entire group of employees for non-investigatory purposes. Beginning with GPS tracking for individual misconduct investigations, this Article contends that such tracking should be used only as a means to corroborate evidence that an employee has committed a terminable offense, that an employer may resort to this technique only after alternative investigative methods fail to generate enough evidence to warrant disciplinary action, and that the tracking must cease once the alleged wrongdoing has been corroborated. Turning to non-investigatory forms of GPS tracking, such as the monitoring of an employer’s entire fleet of taxi-cab or rideshare drivers, this Article proposes that such tracking should be performed only for legitimate business purposes and only if employees consent to the tracking in advance. Whether performed for investigatory or non-investigatory purposes, this Article further proposes that employers should avoid collecting GPS tracking data while employees are off-duty. Finally, this Article addresses employee tracking through smart phone apps, including employer-owned apps and apps designed for time-keeping purposes. Because employees who use such apps typically consent to the monitoring of their phone’s location, this Article concludes that employees tracked in this manner cannot reasonably expect privacy in such monitoring. As a result, this Article predicts that app-based employee tracking will not trigger Fourth Amendment protection, nor will it be sufficient to sustain a privacy-related tort claim, such that employers will typically not face civil liability for tracking employees through smart phone apps.

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