GPS Tracking and Smartphone Apps – Get Consent!
With the proliferation of satellite navigation systems and smart phones, many employers have contemplated using GPS tracking to increase efficiency, and frankly, to keep a better eye on their employees during the work day. The use of GPS tracking in a vehicle can be lawful, there are some limitations to keep in mind.
First, you have to keep in mind an employee’s potential right to privacy while in the company vehicle. Make sure you have a policy in place that informs the employee that the vehicle has a GPS system installed that will track their whereabouts. If the GPS system has other functionality, like tracking speed, gas consumption and driving behaviors, the employee should be put on notice of those things as well. Some GPS systems also have video and audio recording features. All of those things should be explicitly disclosed to diminish the employee’s expectation of privacy while operating the company vehicle.
Second, there are a number of states that limit when and how a GPS system can be installed. For example, in California there is no statute expressly limiting the installation of a GPS system on a company vehicle, but California Penal Code section 637.7 limits when a GPS system can be installed on someone else’s vehicle. However, if you obtain consent from the owner, lessor or lessee of the vehicle consents to the installation of the GPS device.
Minnesota’s restriction on the installation of a GPS tracking device is similar, but broader in its application. (Minn. Stat. 626A.35.) Instead of limiting only installation of a tracking device, Minnesota’s statute prohibits use of a mobile tracking device without a court order, unless consent is obtained from the owner “of the object to which the mobile tracking device is attached…” There are similar laws in Tennessee (Tenn. Code § 39-13-606) and Texas (Texas Penal Code § 16.06).
These statutes create a conundrum for employers who have their employees install GPS tracking apps on their smart phones. Arguably, the statutes would not cover that situation because both statutes say that the tracking device has to be “attached”, and it’s not clear if the installation of an app means the app is “attached.” With the ambiguity in the wording of the statutes, if an employer is going to require the installation of a tracking app on a smart phone, the best practice to avoid potential invasion of privacy claims is to obtain express consent from the employee. Just like a GPS device, the employee should be put on notice of the types of data and information the app will track.
There are additional considerations like when the tracking device is tracking the employee. To avoid invasion of privacy claims, tracking devices should not be active when the employee is not working.
This area of the law continues to change, but its pace is behind the changes in technology so it is important to consult with your employment counsel before implementing new technologies.