Legal Considerations for Employee Tracking
By Dave Kroon
GPS or RFID (radio frequency identification) tracking of employees in the medical setting has been gaining popularity with hospitals nationwide adopting mechanisms for tracking employees, including those in a hospital setting. Various reasons exist for utilizing tracking such as monitoring safety conditions, ensuring compliance with employer policies, improving business efficiencies and improving patient care. While valuable data can be collected, important legal considerations should not be overlooked.
Employers defend GPS tracking as a legitimate means to monitor safety conditions, ensure compliance with employer policies, protect employer property, improve business efficiencies, and improve customer service. Some smartphone applications allow employees to clock in and out of work and fill out forms, but it also tracks employee movements at the same time.
Although there is currently no federal legislation concerning these tracking practices, individual states have begun to consider the issue. California, Texas, Wisconsin, North Dakota, Tennessee, and Minnesota are among those states that have enacted laws regulating this practice. These state laws vary, but they typically require employee consent and include exceptions permitting the owner of a vehicle or device to track its location.
While South Dakota has no legislation governing employee tracking, it does recognize the tort of invasion of privacy. Although there are many different forms of the tort of invasion of privacy, the South Dakota Supreme Court has held that to recover on an invasion of privacy claim, a claimant must show an “unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of another…. Furthermore, the invasion must be one which would be offensive and objectionable to a reasonable man or ordinary sensibilities.”
We are now beginning to see employee claims against employers alleging invasion of privacy. In a pending California lawsuit, a former sales executive for an international wire-transfer service company claimed her employer monitored her off-duty activities and bragged that it tracked employees’ driving speeds. She was disciplined and later fired for disabling the GPS-enabled tracking application on her company-issued smart phone. In her complaint, the former employee alleged that this 24/7 monitoring “would be highly offensive to a reasonable person.”
It appears to be one of the first cases of its kind and may offer some early guidance to employers.
Employers should consider whether their employees have a reasonable expectation of privacy when using any equipment on which a GPS device or RFID device is installed. It may be difficult for an employer to successfully argue it has the right to track an employee’s off-duty activities. In fact, most employers I represent do not want to know the personal habits of their employees, i.e. the doctors with whom they have appointments, or their religious service habits.
At a minimum, employers who wish to track the whereabouts of employer property during working hours should do so only pursuant to the terms of a specific written policy, and only after obtaining a written consent from each employee. Unless there is a legitimate business interest an employer should not monitor an employer’s activities after business hours.
Until the law catches up with recent technological advances, an employer should proceed cautiously. Otherwise, it may run the risk of running afoul of an employee’s rights. Utilization of the information for employment actions should be approached carefully and with the counsel of an experienced employment law attorney.
David Kroon joined Woods Fuller Shultz & Smith in 1987, focusing on general business practice in health and employment law issues. He has been recognized by “The Best Lawyers in America,” “Super Lawyers,” “Chambers USA,” and a winner of the “Best Lawyer’s Sioux Falls Health Care Law Lawyer of the Year.”