DATELINE: BOSTON, MASS.

Over the last few years, use of company-owned property by employees, such as vehicles and cell phones containing GPS devices, has become more widespread. While not the primary use of this property, it does enable an employer to track the whereabouts of the employee (or at least the company property) both during and after normal business hours. In its business law practice, Boston-based Tarlow Breed Hart & Rodgers, P.C. (TBHR) has advised employer clients on the legalities of keeping tabs on their employees and offers some insights on the topic.

Cell phones contain GPS tracking capabilities for "911" calls so that police, fire and other emergency services can trace a call to a general area. In recent years, as cell phone technology has improved, it’s given the user the capability to turn the tracking device off. Yet how many users even know their cell phone can be used as a GPS device to monitor their movement?

"With e-mail and Internet use, employees generally accept that their employer can keep tabs on what they're doing and employee handbooks usually contain distinct language regarding that policy. And if the employer provides an employee with a cell phone, it is generally understood that an audit of the employee's calls could be conducted by the company." said Stephen Kutenplon, partner at TBHR. "Yet when it comes to actually monitoring an employee’s whereabouts, including time away from the office during non-business hours, employers have to walk a fine line between legitimate business purposes and violating an employee’s right to privacy. However, a clearly stated company policy can eliminate an employee’s expectation of privacy, certainly during company hours."

This is a new and developing area of the law, and very few cases have been decided. In Pemberton v. Bethlehem Steel Corp., the Maryland Court of Special Appeals held that an employer could observe, film or record the activities of an employee to ascertain the truthfulness of job-related workers compensation claims. To lessen the chance of an employee making a successful claim that the employer monitoring or use of the GPS results violated privacy rights, there are a few steps the employer should take:

• Only install the GPS device in company-owned property
• Inform the employee of the monitoring and obtain the employee's written consent (consider conditioning use of the company property on the employee providing consent)
• Limit the intrusiveness of the information collection and use (such as by keeping confidential and not using any information obtained related to non-work time or activities [e.g. doctor office visits])
• Recite in the policy the company’s interests in adopting the monitoring, which could be employee efficiency and productivity, easily locating the company vehicle fleet, and safety

"This is a difficult balancing of interests. If an employer feels it is in the best interest of the company to monitor its staff out in the field using a GPS device in company-owned cell phones or vehicles, then that policy should be clearly stated in the employee handbook. The employee should also consent in writing to the policy prior to the company providing the company property equipped with a GPS device," says Kutenplon.

About Tarlow, Breed, Hart & Rodgers, P.C.

Formed in 1991, Tarlow, Breed, Hart & Rodgers, P.C. is committed to providing high quality, comprehensive legal services to its clients. Featuring a breadth and depth of experience and perspective usually found only at larger law firms, Tarlow, Breed, Hart & Rodgers. P.C. offers sophisticated legal counsel to entrepreneurs, businesses, individuals, families, and institutions.

Tarlow, Breed, Hart & Rodgers’ areas of expertise include corporate law, employment matters, mergers and acquisitions, litigation and dispute resolution, estate planning, taxation, real estate, bankruptcy, and municipal law.

The offices of Tarlow, Breed, Hart & Rodgers, P.C. are located at 101 Huntington Avenue, Prudential Center, in Boston, MA 02199. For additional information, or to arrange for a consultation, please call 1-617-218-2000, e-mail info@tbhr-law.com, or visit www.tbhr-law.com.

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