When Technology is Ahead of the Law
GPS tracking is fast becoming a very legitimate business practice. From monitoring your employee's safety, boosting your productivity or improving customer service - you may have every reason to track where your employees are.
Advances in GPS technology is providing employers with unprecedented access to their employees’ locations. And with the use of devices and smartphone apps, this information is now available at your fingertips.
However, it's vital we understand the legal implications. This form of surveillance is new, both in Australia and internationally. Meaning use of GPS technology could expose employers to substantial legal risk.
When using GPS technology in your business (or planning to), ensuring best practice, think about:
· adopting a transparent approach regarding the use of GPS technology in your operations
· having written policy documentation, and
· giving employees adequate prior notice when implementing GPS technology (or any changes to it)
Rising Commercial Practice
As GPS technology becomes increasingly popular, it seems that many employers are tracking their employees without considering compliance.
A recent data set showed that:
· 43% of workers were given less than 14 days of notice before GPS tracking was to take effect
· 39% of workers were only notified verbally
· One in five vehicles under GPS surveillance did not display a sign informing the driver about tracking.
Some workers also commented that they were tracked 24 hours a day, both during and outside of their work hours.
Settled in International Courts
The legality of employers using GPS tracking has become the subject of much international dispute.
For example, the infamous Xora case in California, where a salesperson sued her employer for tracking her whereabouts using a smartphone app with a geolocation function. Claiming that her employer required her to keep her phone on 24/7, she sought damages of US$500,000. This case settled out of court.
In Elgin v St. Louis Coca-Cola Bottling Co [2005], the Court rejected the claim that Coca-Cola’s tracking of company vehicles intruded employee privacy.
However, in Cunningham v New York Department of Labor [2013], the Court held that GPS tracking of an employee’s own vehicle was unconstitutional.
On the flip side, numerous decisions in New York involving taxi drivers using their own vehicles found GPS tracking is warranted as drivers have no expectation of privacy from a GPS device.
It seems who owns the vehicle has a determinative effect but, no general test has been set yet and legality depends on the facts of each case.
Lack of Uniformity in Australia
What does this mean for Australia?
Currently, our GPS tracking laws are inconsistent and patchy. Specific Workplace Surveillance laws exist in NSW, the ACT and Victoria only. As a result, in 2014, the Australian Law Reform Commission announced it was looking into making State tracking laws more consistent.
For employers, the lack of consistent Federal Legislation is problematic if you operate across the country or if your employees travel interstate. If your business works in this nature, seek professional advice before implementing your surveillance strategy.
Of those States which have GPS tracking laws, the focus is upon the overarching principle of employee consent – which can be achieved in two ways:
· express consent: obtaining consent from your employees via implementing a new policy or a new employee contract.
· Or the easier option of implied consent. For example, labeling your vehicles with a notice stating the vehicle is monitored by a GPS device, employees who use the vehicles are deemed to have provided their consent.
Regardless of your approach, one thing is clear, use of GPS technology must be overt, and employees must be notified at least 14 days before surveillance starts.
If your State does not have surveillance legislation, then GPS tracking would be covered by the ever so complicated law of Torts.
Breach of General Protection Provisions
Aside from State GPS tracking legislation, the Federal Fair Work Act 2009, also provides employees with an extra layer of protection under its general protection provisions.
GPS tracking could be considered an “adverse action” under the Act if it changes “the position of the employee to the employee’s prejudice.” A privacy concern (such as surveillance), may have this effect given the Courts have ruled that the Acts provisions cover more than an employee’s legal or economic loss.
For example, if an employee could prove surveillance took place because of their attributes, even if you have a legitimate reason for tracking your employees, you may be found in breach of the Act.
Workplace Change and Consultation
Installing GPS surveillance generates enormous impact for employees and, as such, its implementation may potentially constitute a “workplace change” as defined by the Fair Work Regulations 2009.
In situations like this, the regulations would require introducing your tracking policy through a consultation process. As such, the best approach is always to be:
· transparent across the company, and
· give employees adequate channels to raise concerns
The Fair Work Commission may step in to settle any prolonged conflict between your business and your employees, as illustrated in CPSU v VicForests [2011].
At the same time, however, the regulations in Australia are general in nature. They do not specifically target GPS tracking, so the impact depends on the particular circumstances of your company and the approach you have in mind.
The Bottom Line – what does it mean for your business?
All in all, Australia and the rest of the world have much catching up to do in regulating workplace GPS tracking. Knowing your employees’ whereabouts has massive potential upsides to your business, but it would be unwise to venture into this new terrain without thinking about how to comply with the law in the area.