Employment law attorney Thomas S. Kleeh discusses various apps for tablets, smartphones, and other devices that employers can use to track employee productivity.
These days, it appears a new smartphone or tablet with all the latest bells and whistles is released to adoring throngs of business and personal technology users on a daily basis. Each device is trumpeted as the latest and greatest life-changing gadget that everyone must have immediately. The productivity and communication tools such devices provide have made them almost a necessity in today’s business climate. We all have clients, customers, and supervisors who would like real-time lines of communication and access to our whereabouts. With the incredible improvements in mobile communication devices as well as their GPS capabilities, that real-time access is now possible. The question that remains is whether employers should avail themselves of this technology.
I Always Wanted a Big Brother
A brief search of both iTunes and Android Market reveals multiple apps available for an employer’s selection. The apps are remarkably inexpensive, ranging in price from $2.99 to the whopping sum of “free.” Each app comes with a variety of features and sales pitches. Some call themselves ideal for keeping track of employees in the field and on sales trips. Others reference the ability to track employees during work hours (although none of the apps appear to automatically disable themselves during nonworking hours). One app recommends itself for employees doing field work, traveling salesmen, security guards, and postal workers as well as employees in the construction industry.
Not only are software developers deploying apps for employers, but wireless service providers are offering similar services for a monthly charge on your corporate service account. The services tout their ability to make the workforce more efficient through smarter dispatching and keep tabs on employees’ productivity levels while they’re in the field.
Be Careful What You Wish For
Although the technology and services are available, employers must initially ask whether using them is prudent from a number of perspectives, including risk management and personnel relations and morale. First, the use of tracking technology raises certain constitutional implications for public employers. Just this past January, the U.S. Supreme Court found that law enforcement’s use of GPS to track a vehicle’s movements on public streets was a “search” within the meaning of the Fourth Amendment to the U.S. Constitution. Thus, a search warrant was required to use such tracking devices.
So public employers must be mindful of restrictions on their ability to track employees via their mobile communication devices. However, that doesn’t mean private-sector employers are free to track employees as they see fit. You would be wise to follow the standard operating procedure companies often deploy for employee use of other technologies such as e- mail, Internet access, and office phones. Specifically, you should consider issuing and distributing policies for company-provided mobile communication devices that ensure your employees understand they don’t have any expectation of privacy when they use such devices. Include specific language covering any possible use of GPS abilities.
State-Specific Considerations
Many states have privacy laws that bring up additional issues to consider. Your state may have rules restricting monitoring in places like restrooms, shower rooms, locker rooms, dressing rooms, and employee lounges. Although you may not have much incentive to track an employee’s productivity while she’s in a restroom, if state law prohibits you from doing so, you’re faced with the logistical nightmare of having to disable tracking apps or features whenever an employee visits an “off-limits” place.
Bottom Line
Again, the technology available at our collective fingertips has ― for the most part ― made our day-to-day lives more convenient and productive (when we aren’t playing Angry Birds). The benefits of that technology are also readily available to employers looking to improve logistical planning and workforce productivity. However, you must consider all the potential legal land mines that mobile technology creates. If only there was an app for that.
Tom Kleeh concentrates his practice in labor and employment law with Steptoe & Johnson in Bridgeport, West Virginia. He is a member of the Employers Counsel Network and a contributor to West Virginia Employment Law Letter. He can be contacted at thomas.kleeh@steptoe-johnson.com.
