Advanced technology now enables employers to monitor their employees' movements and locations in various ways. For example, Global Positioning System (GPS) devices use satellite technology allowing employers to track the movements and locations of employees in real time almost anywhere. Employers can do so through GPS devices that are typically located in employer-issued property, such as:

This technology is still relatively new and there is limited case law on this topic, leaving employers vulnerable to potential lawsuits. For example, a California-based employee, Myrna Arias, is currently alleging that her employer, Intermex, fired her after she removed a job management app from her phone that tracked her GPS location while she was off duty. The complaint, filed on May 5, 2015, states that Arias's boss bragged that he knew how fast Arias was driving because of the app (see Arias v. Intermex Wire Transfer, LLC, (Cal.Super.)). Weeks after Arias complained about the app's intrusion of privacy, Intermex fired her. Arias then filed a complaint alleging violation of the right to privacy and California labor laws, unfair business practices, and wrongful termination in violation of public policy.

An employee's right to engage in certain lawful, off-duty activities is protected by a wide variety of state laws. At least 28 states and the District of Columbia have enacted statutes protecting employees from discrimination or retaliation based on their participation in recreational or leisure-time activities during their personal time. For unionized employers, the use of GPS monitoring may be challenged as an unfair labor practice and an invasion of privacy.

Before implementing a GPS monitoring program, an employer should also consider:

Practical Law has several resources to help employers determine whether its policies are in line with the current trend in employee privacy laws, including GPS monitoring and state-specific privacy laws: