Updated 19 April 2019
There are several instances where tracking the whereabouts of your employees, whether it is for employee safety, boosting productivity or improving customer service – makes perfect business sense.
With advances in technology – GPS tracking systems are becoming more cost effective and easier for a growing number of businesses.
Recent reports are suggesting Chinese companies are using smartphones to monitor the activity of their street cleaners; with widespread backlash over such monitoring.
In recent years, the advances in GPS technology and the “Internet of Things” has given employers unprecedented access to their employees’ locations. Through devices and smartphone apps, you have this information at your fingertips. However, it’s vital to understand its legal implications. This form of surveillance is new both internationally and in Australia. This means that it may expose you to substantial legal risk.
As best practice, you should:
- adopt a transparent approach
- have written policy documentation; and
- provide employees with adequate prior notice.
Some of the questions to ask BEFORE implementing include:
- Do I need consent?
- Am I tracking using a personal or company owned device or vehicle?
- Am I tracking the employee on or off company premises?
- Am I tracking the employee inside and / or outside of work hours?
Employers are generally able to monitor activity carried out using a company owned device or vehicle – however when this monitoring extends to off-premises and outside of work hours the laws are not so clear cut.
Rising Commercial Practice
Whilst GPS tracking is becoming increasingly popular, many employers are tracking their employees without considering the question of compliance.
A recent dataset from T Sheets shows that 43% workers were given less than 14 days of notice before the tracking takes effective, 39% of workers were notified verbally, and one in five vehicles under GPS surveillance did not display a sign informing the driver about tracking. Some workers also commented that they were being tracked 24 hours a day, both during and outside of work hours.
Unsettled in International Courts
The legality of employee GPS tracking has been a subject of international dispute.
You might have heard of the famous Xora case in California, where a salesperson sued her employer for tracking her whereabouts using Xora, a smartphone app with a geolocation function. She says that her employer required her to keep on her phone 24/7. Accordingly, she sought damages of US$500,000. However, this case ended up being settled outside of the court.
In Elgin v St. Louis Coca-Cola Bottling Co , the court rejected the claim that Coca-Cola’s tracking of company vehicles was an intrusion of employee privacy. In Cunningham v New York Department of Labor  however, the court held that the GPS tracking of an employee’s personal vehicle was “unconstitutional”.
Then again, it was also decided in numerous decisions in New York involving taxi drivers (who owned their own vehicles) that GPS tracking was warranted as drivers had no expectation of privacy from the GPS device. It seems like the ownership of the vehicle has a determinative effect but no general test has been set and legality depends on the facts of each individual case.
Lack of Uniformity in Australia
GPS tracking laws are inconsistent and patchy in Australia. The laws of each state vary greatly. Specific workplace surveillance laws exist only in NSW, the ACT and Victoria. The Australian Law Reform Commission announced in 2014 that it was looking into making state tracking laws more consistent.
The lack of uniformed federal legislation is especially problematic if you have operations across the country and/or if your employees travel interstate. If your business is involved in these, you should seek professional advice in implementing your surveillance strategy.
However, states which have GPS tracking laws focus upon the overarching principle of employee consent. You can obtain express consent from your employees via implementing a new policy or a new employee contract. Alternatively, you can opt for the easier option of implied consent.
Through labelling your vehicles with a notice stating that the vehicle is monitored by a GPS device, employees who use the vehicles are deemed to have provided implied consent. States laws stipulate that that your employees must be notified at least 14 days prior to the surveillance coming into effect. To ensure that your documentation complies with the legal requirements, it’s always best to seek advice from a qualified lawyer.
If your state does not have surveillance legislation, then GPS tracking would be covered by the ever so complex law of torts. Again, you would benefit from professional advice.
Breach of General Protection Provisions
Aside from GPS tracking legislation, the federal Fair Work Act 2009 also provides your employees with an additional layer of protection under its general protection provisions. Your GPS tracking could constitute an “adverse action” under the Act if it changes “the position of the employee to the employee’s prejudice.”
A privacy concern may have this effect given that the Courts have ruled that this provision covers more than an employee’s legal or economic loss. If your employee can prove that the 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
GPS surveillance can be an enormous change for your employees and its implementation may constitute a “workplace change” as defined by the Fair Work Regulations 2009. In that case, the regulations require your tracking policy to be introduced through a consultation process. Here, the best practice is for you to ensure transparency across the company and that employees have an effective channel to raise their concerns. The Fair Work Commission may step in to settle any prolonged conflict between your company and your employees, as illustrated in CPSU v VicForests .
At the same time, however, the regulations in Australia are general in nature. They do not specifically target GPS tracking so their impact depends on the specific circumstances of your company and the strategy you have in mind.
The Bottom Line
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 many potential upsides to your business, but it may be unwise to venture into this new terrain without the support of qualified legal advice.
Things to consider in a policy include:
- why your implementing the tracking
- the nature of the tracking device
- what data you’ll be collecting and how you plan to use it
- how the data will be sourced
- how the data will be secured
- who has access
What do I do now?
Contact us if you would like to have more information on workplace surveillance and workplace privacy. Our lawyers at You Legal will be happy to assist you in whatever way we can.
* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.