Is Your Boss Checking Up on You?

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The Atlanta Journal-Constitution

August 18, 2014

Copyright 2014 The Atlanta Journal-Constitution

As work and home time blur, tracking technology a concern

In an era of company-issued GPS-enabled smartphones and tablets, employers now have the technology to track workers' every move from sunrise to bedtime.

Companies say tracking employees can be good for business. For example, it can help improve safety—ensuring truckers drive safely and get the rest required by law. Tracking can also make companies more productive and competitive by monitoring performance and productivity.

Etta Epps, a UPS delivery driver for 10 years, said she is keenly aware of the shipping giant's surveillance of her actions through GPS and sensors in her truck.

"You're so conscious every day of trying not to do this, or not to do that, because you know you're being monitored," Epps said.

But the capabilities also mean employers can also easily keep tabs on anyone from sales staff to office workers whether at work or at home.

That raises questions for the 21st century working world: How much data should companies collect on where their employees are, and how should they use it? What about for an office employee or manager who handles work-related business and calls on nights and weekends, or has flexible hours and works from home? What should the parameters be, who sets the limits, and when and where is an employee entitled to privacy?

There are few laws and court cases to help companies or workers understand the limits, leaving some gray areas for protection of employees' privacy.

Some companies say in their employee handbooks or policies that they have the right to conduct certain types of employee monitoring. That makes it less likely that monitoring could be considered an invasion or privacy.

"In general, there's not a lot of privacy in the workplace in the United States," said Marisa Pagnattaro, a professor of legal studies at the University of Georgia's Terry College of Business.

Epps, the UPS driver, feels she has little privacy at work. She drives for a company that is among the most avid users of technology to track vehicles and drivers.

Sandy Springs-based UPS uses "telematics," with more than 200 sensors on each vehicle that track not just location and engine status, but also speed, idling time, hard braking, how many times drivers put the truck in reverse and when they are wearing their seat belts.

Epps said she's been "spoken to" about picking up her work handheld device while her truck is in motion, or the truck's bulkhead door popping open while she is driving.

"Sometimes you forget—you slip," Epps said.

"They want to track everything we do. Nobody wants to be monitored. But it's beyond our control. There's nothing we can do about it."

The company finished outfitting its U.S. truck fleet in 2012 and says the data helps improve safety, vehicle maintenance and employee training and contributes to lower costs by, for instance, reducing idling time. UPS uses the data to encourage drivers to reduce the number of times they back up, a common contributor to accidents.

"You don't realize how often you're doing it until it's brought to your attention," said Randy Stashick, global vice president of engineering for UPS.

The use of telematics was discussed extensively in the most recent UPS contract talks, resulting in language restricting the company from firing workers solely based on telematics data. Teamsters general secretary-treasurer Ken Hall said the language also helps to address a concern among workers regarding the use of the data to intimidate workers.

"We also don't want some supervisor using (that) as a threat, to say, 'I'm going to watch you today and if I see anything through GPS or otherwise, I can fire you,'" Hall said.

Other types of businesses may monitor workers, such as sales people, through GPS on company-issued vehicles.

And new technologies are coming out, such as one that embeds computer chips in employee badges that can track a worker's movement in the office. A Boston-based startup called Robin in July raised $1.4 million for its software that can sense employees walking into a room via their smartphones and Bluetooth technology. The upside to such tracking is that it creates a "smart office," for instance that can update screens for a worker who walks into a room or help with automatic conference room bookings.

More commonly used technologies are company issued smartphones or tablets, which also are capable of tracking locations.

As the new technologies became commonplace, notions of privacy are evolving. Many still shiver at the idea of anyone knowing where they are at any moment—even if it's their employer during the work day. One concern that's paramount is that they may be constantly watched for missteps that could lead to losing their job.

What's more, because people commonly carry their work-issued smartphones home with them and out around town, lines are blurring between work and personal life.

For companies, the same technologies that allow them to create efficiencies also create risk. Companies can technically access all of an outfitted employee's data, day and night. That includes workers' activities during personal time—such as visiting a psychiatrist during a lunch break.

"The technology is useful," said Tracy Moon, an Atlanta employment attorney and partner with Fisher & Phillips. But "sometimes there's no clear direction on what is lawful."

Moon said most states, including Georgia, do not have laws that apply to tracking workers, so the main legal protection is employees' expectation of privacy, though past cases have shown companies have broad license to monitor employees.

In a 2005 case involving a Coca-Cola bottling company, an employee sued for invasion of privacy after the company installed a GPS device on his company-owned vehicle without his knowledge. The court ruled the GPS tracking revealed only public information and was not an invasion of privacy.

Even so, employment attorneys say companies should be careful about what information they collect.

The boundaries may be fairly straightforward for hourly workers while at work. But for salaried employees, where the workday ends and personal life begins "is a little less clear," Pagnattaro said.

Moon said another case showed it's important that companies make sure they have a legitimate business reason to collect the data, draft a written policy and get employees' acknowledgment.

Companies should also be careful about who has access to the information, limiting it to specific human resources staff rather than other departments or managers, said David Barton, managing director at Atlanta-based consulting firm UHY Advisors. Otherwise, it can create opportunities for rumors and other negative consequences for workers, he said.

Invasion of privacy isn't necessarily the biggest concern for employers.

A bigger risk could be the chance for a discrimination lawsuit based on collected data that reveals, for example, an employee's religion by logging their attendance at a mosque, synagogue or church.

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