Tracking employees: Can GPS be used?

Technology can track where workers clock in with a smartphone
By Melissa Mancini
|Canadian Payroll Reporter|Last Updated: 04/03/2012

The technology is available to ensure employees are honest when clocking in remotely.

Employees who work offsite often call in to clock in and start their days. It’s long been a concern of employers that some employees call from home instead of the worksite or client location — stealing time and wasting company hours. But GPS-based time tracking technology means employers can check where employees are when they start their days and are using a smartphone.

TimeMD is an online time and labour management company that produces GPS time tracking options for employers based in Birmingham, Ala.

“We were approached with a need from some clients, asking if it was possible for us to tell them if the location an employee called from could be determined,” said company president Erik Rowland.

Most smartphones have a GPS functionality, TimeMD developed a program that can retrieve the latitude and longitude from a smartphone and saves those co-ordinates when a punch is made. A dozen companies have activated the technology with TimeMD in the United States, he said.

“One of our biggest areas we’ve found that this is of most interest is  in hospice care — people who go to a client’s home in order to provide care — there are company policies that state that once they arrive at the home they need to call in and check in,” he said. “This would eliminate that need. They simply use their smartphones to clock in, the co-ordinates are then sent and they can determine if they are actually at the client’s home.”

He stresses the technology is not used to track employees all day, just when they are punching in and out.

“There’s a lot of privacy issues that can arise because of this feature, as you probably can expect most people don’t like to think they’re being tracked all the time,” he said. “Our tracking feature is not on all the time, it’s only activated when you actually clock in.”

The feature also asks employees if it can use their location every time latitude and longitude is accessed, he said.
“We keep that on so that each time we do ask the location the employee has the opportunity to say ‘yes, I permit this,’” he said.

Legal concerns

While the ability to track where an employee is clocking in may seem ideal for payroll and time theft prevention purposes, there are legal issues associated with GPS technology.

“In recommending (GPS tracking technology) for my client I’d be really cautious,” said Kieran Moore, a lawyer with Cohen Buchan Edwards in Richmond, B.C. The case law around surveillance of employees has really developed around cases with other types of surveillance equipment such as video cameras, he said.

“I would think the case law on video surveillance really would guide how a court or the privacy commissioner would look at this,” he said.

A seminal case concerning video surveillance in Canada is Eastmond v. Canadian Pacific Railway which laid out four factors to determine whether gathering surveillance on employees was permissible. Based on Eastmond, the main factors employers would need to consider before implementing a surveillance measure are:
•Is the measure demonstrably necessary to meet a specific need?
•Is it likely to be effective in meeting that need?
•Is the loss of privacy proportional to the benefit gained?
•Is there a less privacy-invasive way of achieving the same end?

But there might be times when GPS tracking could be used.

“I can definitely see circumstances where it is maybe necessary,” said Moore, adding some situations where the technology could stand up in courts might be cases when remote employees work in dangerous situations, such as forestry workers or armored truck operators.

“Something that’s more of a safety concern rather than simply an efficiency or employee management concern is more likely to stand up.”

Employers should keep in mind there are two types of surveillance: covert and overt. Covert is only allowed in an investigative situation, so employers always have to have informed consent when using overt surveillance on employees, he said.

And a report from British Columbia’s privacy commissioner goes further to say the consent should be regularly repeated, he said.

Another issue is storing the data collected through surveillance and who has access to that data. The people who access it should be restricted, said Moore.

“So for all those reasons an employer who wants to put this in place has to have a written policy about it and really should get it written by legal counsel,” he said.

“The obvious concern with this kind of tracking device is: Is it always on?” said Moore. “Does it track employees while they’re on breaks, does it track them when they’re off hours? Because that would be presumptively an invasion of privacy.”

There are also concerns about what other data the device is collecting. Even if the device only creates a report for the moment when an employee clocks in or out, it still might be collecting data at other times, said Moore.

Employers should also consider that if data is being collected by a U.S. company and the information gathered is stored in the States, the government there has a lot of power to get that information under the Homeland Security Act, he said.

“I guess the takeaway is… the employer needs to figure out exactly what data is being stored where and make it very clear in their policy who has access to it,” he said. “With a properly crafted policy, if it was limited only to punching in and punching out and really didn’t collect any other information... it could be a legitimate use.”

For more information see:
•Eastmond v. Canadian Pacific Railway, 2004 CarswellNat 1842 (F.C.)