By UpCounsel Employment Attorney Laura Neish

It’s easier than ever for companies to monitor their employees’ locations, productivity and even heart rate with technology such as GPS devices and fitness trackers. These new technologies have some obvious benefits for employers – they can keep track of company equipment, create more efficient workflow, and investigate employees suspected of misconduct. But electronic monitoring poses many potential risks as well, from low employee morale to lawsuits. As technology continues to evolve, below are a few best practices for employers to consider:

Research Applicable State Laws

Because there is no federal statute governing electronic tracking of employees, in most cases employers will need to look to state law to determine what practices are permissible. Some states have adopted specific statutes regarding employee tracking. In Illinois, for example, an employer may use GPS to monitor the location of a company-owned vehicle, but may not install a tracking device on an employee-owned vehicle without the employee’s consent.

In states where there are no statutes directly addressing the issue, courts will look to state law governing privacy rights. These standards vary, but in general courts are more tolerant of tracking when it occurs on a device or vehicle owned by the employer and when the employee consents to the monitoring.

Limit Tracking To Business Hours and Business Necessities

Regardless of the jurisdiction, employee tracking should always have a legitimate business justification and should be tailored to avoid overreaching. There is a big difference between following the location of an employee making a delivery for the company and tracking that same employee’s whereabouts on the weekend.

Employers who fail to recognize the boundaries between work and private life risk ending up in court. In 2015, a California woman sued her former employer, claiming she was terminated for uninstalling a GPS tracking app from a company-issued smartphone that was tracking her movements at all times. If your company uses tracking software on vehicles or devices that employees take home with them, the best practice is to disable tracking during nonworking hours.

Avoid Collecting Health Or Physical Fitness Data

Health and wellness technologies such as fitness trackers raise other potential legal issues. For example, an employer who collects data on individual employees’ physical activity or fitness could face disability discrimination claims if it appeared that the employer was granting preferential treatment to more active employees at the expense of employees with disabilities.

The safer course of action is to make participation in any fitness or wellness programs optional for employees. Companies should also avoid coming into possession of personally identifiable employee information by using a third party such as a health insurance provider to collect the data.

Ensure Employees Understand Company Policy

Companies who engage in electronic tracking should adopt a written policy setting forth what activities will be tracked, the business reasons for the tracking, and any limitations on tracking. The company should also make sure employees are aware of and understand the policy. Clear communication can go a long way in preventing employee misunderstanding and mistrust about electronic monitoring.

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About the author

Laura Neish

Laura Neish

Laura advises small to medium-sized enterprises on all their legal needs, with a particular focus on contract and employment issues. She aims to provide cost-effective, strategic counsel to help businesses grow and avoid problems before they arise.

Prior to forming her own firm, Laura was a partner at Zuckerman Spaeder LLP and an associate at Debevoise & Plimpton LLP in New York. Laura clerked for the Hon. Sidney H. Stein in the Southern District of New York and is a graduate of Duke University and the University of California, Berkeley School of Law.

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