Thursday, April 28, 2011

We Know Where You Were: Should Employers Use GPS Tracking Data?

The news last week about iPads and iPhones regularly recording geographic locations in a hidden file raises yet another challenge for employers. Consider the possibilities:

An employee complains that a supervisor who has her iPhone number in order to reach her for work reasons has been calling her repeatedly asking her out on dates and he is showing up where she goes after work with her friends. She suspects he may be tracking her every move using her number.

A line supervisor reports to HR that an employee has been lying about illness as the reason for frequent absences and shares that he accessed the employee’s iPhone location data as his method of uncovering the truth.
An employer is in the midst of complex and high-stakes investigation regarding alleged misconduct and wants to access the location tracking files on employees’ iPhones and other mobile devices.

These are just a few situations that may arise for employers, and the laws governing employee and employer rights in this area are still evolving. So what should an employer do if faced with a situation involving this tracking technology? Be careful. Make sure you understand all the facts at hand and familiarize yourself with the technology or particular application at issue. Don’t make snap decisions or immediately search for or use information that may, in fact, be available. Do review your current employment policies and practices, especially those relating to access and use of smartphones. Does the company provide or subsidize smartphones for employees? If not, attempting to access or use location tracking data could create legal risk.

As employers continue to loosen the reins on smartphone use, the corresponding increase in data access will continue to create legal risk. This news brought to mind an Elizabeth Lindsey quote I saw recently: “We live in a society bloated with data but starved for wisdom.” Just because data is created and available doesn’t mean an employer should use it. A wise employer should use good judgment and consider the risks before accessing or using data created by new technology.

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