Being able to track your employees makes good business sense, especially if they are not tied to a desk or an office. If you employ a sales staff or have employees who work remotely or at home, you may need a way to track their location. If you provide company-owned phones, laptops, or vehicles, then you may legally install some forms of GPS tracking software. But what if you want to track an employee without installing software? Can it be done? Is it legal?
The short answer is maybe. As an employer, you do have the right to make sure that your employees are working the stated hours and are located where they say they are during business hours. Thus, a smartphone, laptop, or other electronic devices that are provided by your company can legally contain tracking software on it. The issue gets trickier if it is the employee’s own personal smartphone, mainly because of employee privacy laws. Employers are legally allowed to make sure that their company-issued equipment, vehicles, and devices are being taken care of and used in an appropriate manner. Tracking also ensures that remote employees are exactly where they say they are via GPS or installed tracking software.
The laws will differ by state, but there is no federal mandate to prevent businesses from tracking their employees with GPS. In some states, such as Texas, Virginia, Minnesota, and Tennessee, tracking company vehicles without the owner’s consent is deemed illegal. In California, the penal code prohibits any “movable thing” from being tracked. Phones are different animals though…most will continue sending GPS data for 24 hours a day regardless of whether the employee is off the clock or not. Many devices will allow the employer to locate the device on a map with just a click any time of day. It’s up to the discretion of the employer as to whether or not they want to view or use this information.
One reason that business owners are willing to track their employees to prevent losing money or company time is that an employee’s time is ultimately a business expense. Employees often fudge their hours – known as time theft – which could mean a huge loss of revenue for the company. Time theft is a huge problem for employers. According to a study done by the American Payroll Association, almost 75% of employers are affected in some way by time theft. This could come in the form of time card fraud, “buddy punching,” faking illness, taking long lunches or breaks, or using company time for personal appointments or other business. In other words, any time spent on personal business instead of company business is stealing from the company. This in itself is a good reason to keep track of your employees during business hours.
If you are in the market for a mobile tracker application, there are several software companies that design trackers for use on employer-provided devices. These apps can automatically generate location reports on each employee. They are also programmed to shut down after the employee clocks out so that the tracking for the day is discontinued if the employee takes the device home with him or her. These apps are also able to record keystrokes, conversations, and even use the GPS location of the phone as necessary. If tracking software is the way you want to go for your employee smartphones, here are the details on a few of the top-selling tracker software. mSpy or PhoneSpector are both good options because you don’t need access to the actual phone in order for them to work. You can simply send the person an email and the app installs itself without their knowledge.
If your company allows employees to use their personal cell phones for business use, be sure to check your state laws to make sure you understand your legal rights as an employer. Your company should have its own written policy in such a case and your employee should be required to read, sign, and understand it thoroughly before using his or her own phone for business use. As their employer, be sure to clearly set boundaries on how employees can use company assets as well as their own personal cell phones. The last federal legislation to address this issue was the Electronic Communications Privacy Act of 1986, updated in the USA PATRIOT Act of 2001 and subsequent amendments. Unfortunately, technology moves at a faster pace than legislation so there still isn’t a clear directive on the issue of tracking employees’ personal cell phones.
Most states do not have laws on the books yet for tracking employee location, although some have written statutes that protect certain aspects of employee privacy. As of 2018, California is the only state that has written laws stating that employees are prohibited from tracking employee’s personal vehicles (which still doesn’t answer the cell phone question). There was also a case out of New York in 2013 – Cunningham v. New York State Department of Labor – that also addressed GPS tracking of vehicles. Although the GPS tracker was installed on an employee’s personal car, the court ruled that it was not allowed because employees should have a reasonable expectation of privacy during their time away from work. At this time there are no specific state statutes that address employer tracking of electronic devices.
In the meantime, if you still want to make sure that an employee has your business’s best interests at heart, the best method may be to get a set of trained eyes on the person by hiring a private investigator to do the tracking for you. New York City private investigator, Darrin Giglio, recommends hiring a trusted third party that can look into the employee and gather the needed evidence of wrongdoing. “A good private investigator can protect the integrity of your business,” Giglio said. “If you can get video surveillance of an employee cheating your company out of time or money or intellectual property, that’s far stronger evidence than you’ll get from a tracker app.” In a legally grey area such as cell phone tracking, the wisest move may be to hire a professional to uncover any wrongdoing at your place of business.