Google Latitude, a new Google application allows users to track the physical location of other people through a mobile phone or computer. While the GPS tracking technology is nothing new, the amazing aspect of this is how inexpensive tracking technology has become. Many employers have already implemented GPS tracking, but now with Google’s basically free service many more employers will look to this technology to help manage their workforce. However, there are already concerns about individual privacy rights being voiced about this technology, and employers should be aware of employee’s privacy rights before using this technology.
First off, in California, Article I, Section I of the California Constitution guarantees citizens a right of privacy:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
This right to privacy carries over to the workplace. Furthermore, section 96(k) of the Labor Code provides that the California Labor Commissioner may assert on behalf of employees:
Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.
In Barbee v. Household Automotive Finance Corp. (2003), a court provided some guidance about the ramifications of section 96(k). Barbee was dating a subordinate at work, which violated the company’s policy and created a conflict of interest. The company gave Barbee and the employee with whom he was involved the option that one of them had to resign or to end the relationship. Barbee refused to resign, and they did not end the relationship, so the company terminated Barbee. Barbee sued, arguing that the company violated Labor Code section 96(k) in that his employer was regulating his lawful conduct during personal time. The court rejected Barbee’s argument in stating:
We conclude that Labor Code section 96, subdivision (k) does not set forth an independent public policy that provides employees with any substantive rights, but, rather, merely establishes a procedure by which the Labor Commissioner may assert, on behalf of employees, recognized constitutional rights. Therefore, in order to prevail on his wrongful termination claim, Barbee must establish that his employment was terminated because he asserted civil rights guaranteed by article I of the California Constitution. We conclude that Barbee cannot make this showing and therefore he cannot establish the first necessary element of his wrongful termination claim.
While the court held that the company’s actions in that case did not violate section 96(k), the facts were very favorable to the employer that are not applicable when dealing with privacy rights and GPS tracking. Also and there are other arguments available to employees. For example, an employee may also argue violation of Labor Code Section 98.6 which states in part that “no person shall discharge any employee … because the employee … engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96 ….”
Therefore, there are a few minimum steps employers should take when using tracking technology in the workplace:
- Develop a policy about how the company will use GPS tracking in the workplace.
- Disclose the policy in writing to the employees.
- Pay for the device or software that is required for the tracking (requiring employees to pay for business expenses violates Labor Code section 2802).
- Allow the employee to turn the GPS device off when not working during the day, such as during lunch breaks, on personal time, or after they have left for the day.