16NLRB Rules Employers Can Use GPS Tracking Devices to Track Employees in Certain Cases

A woman filed a case against a former employer of hers earlier this year for invading her privacy and retaliation. She claimed the employer fired her because she wouldn’t use the GPS tracker app on her mobile device the company issued to her. This case settled outside of the courtroom.

An unfair labor practice charge brought up against an employer was asked to be dismissed by the NLRB’s Division of Advice. The charge alleged that the National Labor Relations Act Section 8(a) (5) was violated by the employer since they used a GPS tracker to investigate an employee before they first bargained with the union. The sensible conclusion by the Division of Advice was based on specific case facts since employers normally are obligated to bargain with the union about using GPS technology to monitor its employees.

In this case, the union was fully aware of the employer’s practice of hiring a professional investigator to track down and follow employees who were suspected of stealing time. The union had no objections to this practice. The results the employer obtained through the personal observations of the investigator were used for disciplinary purposes. In order to expedite the investigation, the employer placed a GPS tracker on the truck of the employee on the days the investigator was following him to ensure the investigator was able to maintain and regain visual contact at all times.

The NLRB found that in situations that involved investigations of misconduct, employees could be tracked by employers and that the use of GPS trackers for monitoring unionized employees who were currently under investigation already for misconduct didn’t characterize a ‘substantial, significant and material’ change in the employees’ employment terms and conditions.

The NLRB finished by saying the employer was not under any obligation to bargain with the union over installing the GPS tracking device. Since there was already a practice of hiring personal investigators to monitor employees who were suspected of misconduct, using the GPS tracker as a mechanical method to enforce an already established policy didn’t constitute a substantial change.

The investigator lost contact at one time with the employee and was able to find the employee’s location using the GPS tracking device. He personally observed this particular employee showing misconduct at one point. The employee was terminated based on this observation.

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