November 1, 2010
When he accepted a cellular phone from his employer in 2005, John Halpin probably never guessed that it would get him fired. But the global positioning system in the veteran New York City school employee’s phone contradicted his time cards, and 2008 the state’s department of education dismissed him, following an administrative law judge’s recommendation.
Halpin, a 21-year employee who oversaw the school system’s carpenters, argued that his privacy was invaded because he didn’t realize the phone contained a GPS system. The judge found that “The department (of education) is not expected to notify its employees of all the methods it may possibly use to uncover their misconduct,” according to a New York Post article. “The undisputed intent of issuing the cell phone with GPS was for the department to be able to determine the whereabouts of its supervisors in the field.”
Despite high-profile cases such as Halpin’s, employer use of GPS tracking is still rare, even as other types of employee monitoring are growing. While two-thirds of employers monitor their workers’ Internet activity, less than 10 percent use GPS systems on company vehicles, according to a 2007 survey conducted by the American Management Association and the ePolicy Institute. Of the companies surveyed, 8 percent use GPS to track company vehicles; 3 percent use GPS to monitor cell phones; and less than 1 percent use GPS to monitor employee ID cards.
Industry interest highHowever, because of the potential for having to deal with workplace injuries and the fact that they are not always at the jobsite, air-conditioning, heating and refrigeration contractors may be more interested than other employers in monitoring the whereabouts of their supervisory employees.
The fact remains that cases such as Halpin’s are becoming more common among employers that use surveillance methods. The AMA/ePolicy survey found that employers are taking more disciplinary actions against employees who flout company policy: More than 25 percent of these employers have fired workers for misusing e-mail, and nearly one-third have fired employees for misusing the Internet.
While employees may balk at the idea of being monitored, surveillance tools can offer many advantages to both employees and employers, including more efficiency, better work product and mitigating risk for all parties involved. At the same time, managers who want to consider the use of GPS systems should also be aware of legal restrictions and also need to be sensitive to employees’ concerns about surveillance and its intrusion into their private lives.
TrendsAccording to the AMA/ePolicy survey, Internet and e-mail monitoring are the most common types of employee surveillance tools: 66 percent of respondents monitor Internet connections, and 65 percent use software to block connections to certain Web sites, including those that contain pornographic material, social networking and sports.
Nearly 45 percent of companies monitor their employees’ e-mail; of those that do, 73 percent use technology tools that automatically check e-mail content, and 40 percent hire people to manually read employee e-mail. Another 45 percent monitor phone calls, and nearly half of respondents use video monitoring to counter theft, violence and sabotage. Less than 10 percent of employers use video surveillance to track on-the-job performance, the survey found.
Legal and security risks are driving more employers to monitor employees.
“Concern over litigation and the role electronic evidence plays in lawsuits and regulatory investigations has spurred more employers to monitor online activity,” said Nancy Flynn, executive director of the ePolicy Institute, in a statement. “Data security and employee productivity concerns also motivate employers to monitor web and e-mail use and content.”
Advantages of GPSBeyond minimizing legal and security risks, the use of tracking devices in vehicles and cell phones offers concrete savings to employers. And employees - at least the honest ones - can benefit from the use of GPS devices by increasing their efficiency and decreasing their down time.
Beyond monitoring employees for misconduct, GPS devices can offer a solid return on the bottom line. For example, with a GPS device, drivers can receive very specific directions to a location, which saves time and gas. Such devices also come in handy when traffic conditions or road closings require drivers to find more direct routes around detours.
Companies can also become more efficient through use of tracking technology. Managers or the company office can know exactly where supervisors or other critical employees are and they can dispatch the ones that are closest when an emergency - or opportunity - arises.
Restrictions on monitoringAs the New York case proves, in some instances employers can monitor employees without their consent. In many jurisdictions, the law still lags behind the technology, and there are some legal gray areas when it comes to monitoring employees. In several states, though, there is no gray - employee surveillance is illegal without employee consent. Currently, two states, Connecticut and Delaware, require employee notification if an employer is using electronic surveillance.
Connecticut, California, Rhode Island and New York have laws on the books regarding an employer’s use of video surveillance. Generally, federal law allows employers to monitor work-related use of telephone, e-mail and other communications. Some unions have also raised the issue of employee monitoring in contract negotiations. It is a mandatory subject of bargaining where a collective bargaining agreement is in effect and the monitoring affects the union-represented employees.
In any case, if a company is considering installing employee surveillance devices, it makes sense to check applicable state laws to see what restrictions exist in your particular state.
EducationEven if the law allows employers to use surveillance methods without employees’ knowledge, it’s always wise to alert and educate employees about the fact that they may be monitored. The deterrent effect can help - employees could be less apt to take unauthorized breaks, leave work early, visit inappropriate websites or otherwise engage in unacceptable behavior if they know such behavior could be, or is in fact, being tracked.
However, surveillance technology also carries a sense of “Big Brother is watching,” and it can lead to ill will among employees, which may eventually take the form of potential legal claims. By creating reasonable policies and educating employees about them, employers can go a long way toward allaying employee concerns while enjoying the benefits of monitoring technology.
Employers should develop specific and explicit policies on employee monitoring, whether it involves e-mail, cell phone use or GPS tracking. The policy should remind employees that company vehicles, computers and any company-issued communication devices belong to the employer and are to be used for work-related purposes. Companies should also make it clear that they reserve the right to track employees to the extent legally permitted.
It may also be wise to spell out what is acceptable personal use of company equipment, and draw a clear line regarding what is excessive or inappropriate. It is generally not realistic, and may be legally unenforceable, to prohibit all personal use of phones, the Internet and the like during work hours. Even if employees may not legally be entitled to a reasonable expectation of privacy while driving company vehicles on company business, strict, inflexible policies are likely to have an alienating effect.
ImplementationOnce a company has developed a policy, educating employees about the policy and the reasons for surveillance technology is the next step. If employees understand why monitoring devices are being used, they are more likely to accept them.
Education on the topic should be ongoing, according to the American Management Association.
“Most employees receive policies regarding use of office business tools and privacy issues on the first day of employment, but too often they don’t read them. Employers need to do more than hand over a written policy,” said Manny Avramidis, senior vice president of global human resources for AMA. “They should educate employees on company expectations and offer training on an annual basis.”
Companies should also consider having employees sign a consent form when they are first hired or when a monitoring program takes effect. This protects companies in case an employee threatens legal action over invasion of privacy or some other matter related to monitoring.
Employee monitoring will definitely become even more common as technology improves and costs for surveillance continue to decrease. Contractors should certainly consider the potential advantages they could reap from surveillance technology in company computers and GPS systems in cars, service trucks and cell phones. At the same time, employers should bear in mind that the law is evolving, and it makes sense to research what is legal in each state.
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over 30 years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Alaniz is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to him at (281) 833-2200 or email@example.com.