Tracking Technology in The Workplace

From: Staffing

Tracking Technology in The Workplace

Tracking technology is an area of technology that has a big impact on the workplace.  Through the use of technology, employers have the ability to track their employees doing many work-related tasks, including driving and computer keystrokes.

Tracking Employee Location

GPS devices installed in company vehicles or cell phones allow employers to track how and where employees are spending their day.  The software typically allows the employer to see a map display of the employees’ physical locations throughout the day.  This type of tracking is gaining popularity for companies whose employees work in the field, such as truck drivers, outside sales people and construction workers.  In addition to the “simple” GPS location tracking, there is also technology that allows a company to monitor the speed an employee is driving, whether the employee is wearing his seatbelt and whether the employee is following road-safety laws.  A 2012 survey reported that 37% of employers that send their employees out on service calls track the real-time locations of those employees.

There are pros and cons to real-time tracking of employee location and activities.  Some of the pros of tracking include increased productivity, improved workplace safety and reduction in theft.  Some of the cons of such tracking activities include decreased employee morale, cost and time associated with monitoring, and privacy.  Notwithstanding the drawbacks to such monitoring, these activities are becoming more common place.

As with all employee monitoring, it is important to have a specific policy in place.  The policy needs to specifically outline the types of tracking that will take place, and require the employee to give consent to such tracking.  The signed policy should be maintained in the employee’s file.  If the tracking involves actual video or audio monitoring of the interior of a work vehicle, a problem may arise if the employee has a non-employee in their vehicle.  Many state laws require consent before any audio or video recording may take place, and therefore it is important to know the laws of those states in which you are operating.  If the state law requires consent, it may be necessary to place a sticker in the vehicle advising that the vehicle is subject to audio and/or video monitoring.

Along similar lines is the concern when the tracking system allows employers to monitor off-duty activity.  If the tracking device is in a company-issued cell phone or company vehicle, then the employer will have the ability to monitor employees after hours.  Accessing such information is not advisable, as such off-duty conduct is typically not relevant to employee performance.  If a company is using a device that allows location monitoring of employees, the policy needs to include information about this.  The policy should advise the employees that the tracking device is active 24 hours a day, seven days a week.  The policy should advise the employees that the employer does not intend to access off-duty data or monitor off-duty location unless circumstances so require.  We do not recommend promising to never access off-duty data because a situation may arise where it is necessary to do so, such as if an employee claims he has been working off the clock.  If possible, employees should be advised to power-down company cell phones while off-duty and to not use the company vehicle for personal use.

Tracking Internet Activity

Studies show that employees spend between one and three hours a day surfing the Web on personal business at work.  This creates significant concerns in the terms of productivity loss and what sites the employees are visiting.  It is estimated that 45% of employers track content, keystrokes and time spent on the keyboard.  There are pros and cons to this type of monitoring activity.  Some of the pros of electronic surveillance of employees at work include increasing productivity and preventing the creation of a hostile work environment through employee access to inappropriate sites.  Some of the cons of electronic surveillance of employees at work include decreased morale, negative impact on the relationship between staff and management, learning unwanted information about employees (such as protected status information), and privacy.

When an employer decides that the pros of employee surveillance outweigh the cons, an appropriate policy needs to be put into place.  The Electronic Communications Privacy Act of 1986 (ECPA) prohibits the intentional interception of any wire, oral or electronic communication.  The SCA, as previously discussed, prohibits the unauthorized access of stored communication.  Both of these laws allow monitoring when consent has been given.  For this reason, it is extremely important for an employer to obtain written consent to any keystroke or other computer monitoring.  In obtaining this consent, the company should describe all types of monitoring it will be using so that the consent covers all employer activity.  It is important that all monitoring activity be conducted professionally and all information learned about employees through such monitoring be maintained confidentially.  All consents should be maintained in the employees’ personnel files.

Employee “Spying”

As technology has provided employers with numerous avenues to track their employers, it has also provided employees with the same ability.  Many gadgets allow employees to “spy” in the workplace.  For instance, Google Glass, a wearable computer that operates like a smart phone, has the potential to create havoc in the workplace.  Such spying devices raise concerns over employee privacy, protection of confidential information and harassment.  For those more low-tech, a cell phone camera carries many of the same concerns.  Whether it is an employee unknowingly recording a meeting with management or an employee taking a photograph of a newly created “widget”, employers need to be aware of the risks and have policies in place to address them.

A company is within its rights to prohibit such spying technology in the workplace.  For example, a company can prohibit employees from wearing Google Glass while at work.  A company can also prohibit employees from taking pictures or videos in work areas.  An employer is even permitted to go so far as to ban all cell phones in the workplace or the work area.  The NLRB has recently indicated that banning employees from taking pictures at work could amount to a violation of the National Labor Relations Act because it could interfere with employees’ protected concerted activity.  Specifically, the Board has indicated that a prohibition forbidding employees from taking pictures during a strike would be inappropriate.  The scope and need for such policies is dependent on your business and security concerns.  Because the threat is real, human resource and legal professionals need to stay abreast of the latest technology and adapt their policies accordingly.

Each company will have different needs and desires as it relates to employee spying issues.  Regardless of the scope of an employer’s control over such issues, each employer should consider a policy addressing the matter.  The policy should clearly set forth what “spying” is acceptable and what is not acceptable.  The policy should also clearly set forth any legal background applicable to such policy; by explaining the reasoning and justification for the policy, the employer is less likely to receive pushback and alienate its employees.  For example, the policy might explain that in Florida, the law requires that both parties to a conversation consent prior to recording.  Similarly, if the company is producing certain items for government contracts that are subject to heightened security measures, explain those requirements to the employees.

Any such policy should also leave enough flexibility to apply to emerging technologies about which the employer was unaware or did not exist at the time the policy was written.  With the lightening speed at which technology is advancing, the ability of the written policy to adapt to the changing workplace needs is critical.

Working After Hours

Laptop computers and cell phones are frequently used by employees to perform work “after hours.”  This creates the potential for liability under the Fair Labor Standards Act when non-exempt employees are using technology to answer emails, make phone calls or access company documents after hours.  If an employee performs work that is more than de minimis, then such work needs to be compensated.  De minimis work is typically considered work that is infrequent and of very short duration, such as a one minute phone call from a supervisor.  On the other hand, an employee who responds to email every night is performing compensable work and needs to be compensated for it.

Employers need to take care when granting off-site access to emails or allowing access to the computer system through a company portal.  In determining who should be granted such “privileges”, the exempt status of the individual should be a first concern.  If possible, non-exempt employees should not be able to access these systems.  If non-exempt employees do have access to these systems, safe guards need to be in place to make certain all of the time worked is captured and reported to payroll.

All non-exempt employees who do have off-site access to company email or computer systems should sign an acknowledgement that they will not access the system during non-working hours, will not send/reply to emails during non-working hours, and will not take/receive work related phone calls during non-working hours.  The acknowledgement should also specifically advise the employees the process to use to capture and report any such time spent performing these tasks during non-working hours.  Typically employers have to rely on employees to report this time, and therefore it is necessary to provide employees with very specific instructions on how to do so.  The acknowledgement should also advise employees that failure to follow the policy and procedure will result in disciplinary action, up to and including discharge.

The policy should also address off duty work by exempt employees.  The issue typically arises when exempt employees check their devices when out sick or taking an unpaid day.  Typically, under the FLSA, if an exempt employee works part of a day, the exempt employee must be paid for the full day.  Because of this, the employer’s policy should advise exempt employees that they are not permitted to perform any work when out for the day on unpaid time.

Paperless HR

Many employers have chosen to convert to a paperless HR system.  If employees are provided with personnel policies electronically, it is critical to maintain a record of the employee’s receipt of the policies, either by a responsive email from the employee or an electronic record establishing that the employee opened the email containing the policies.  If an employer distributes its handbook by electronic means, the best practice is to have employees have to open the handbook to access an acknowledgment receipt certifying that the employee reviewed and understands the policies, and requiring the employee to sign it, either on paper or with an electronic signature.

Another important consideration for those companies that utilize a paperless HR system is security of the records.  Many companies are now storing information “in the cloud” which carries with it the risk of security breaches.  Because many HR records are confidential, it is necessary to have appropriate safeguards in place to protect this data.  HR  needs to work closely with IT to make certain all appropriate safeguards are taken to protect paperless HR records, especially those related to medical, leave, workers’ compensation, benefits and private employee information.

Management Self-Service Systems

Human Resource Information Management Systems often contain tools that enable companies to reduce the amount of paper flowing from management to human resources.  For example, PeopleSoft 9.1 human capital management system allows managers to review or approve basic personnel actions, such as terminations, relocations, salary changes and bonuses directly through the computer.  Such systems also allow managers to handle a number of other personnel matters, such as recruiting and performance evaluations.  These systems are often embraced by the more technically savvy managers and questioned by those more comfortable with filling out a form.  Implementing such a system can be beneficial in many regards.  One, an electronic system to manage this data allows human resources personnel to focus on more strategic matters and eliminates much of the “paper pushing” that was historically associated with this business unit.  Two, such systems allow human resources to more easily track management compliance and therefore ensures more timely completion of necessary forms.  Three, having the information in electronic format allows human resources and management alike to pull data into usable subsets to analyze various factors, such as pay equality and employee attendance.

There are some concerns that an employer needs to consider prior to implementing a manager self-service system.  Oftentimes, initial acceptance and use of such a system is low.  Experienced managers are often wedded to the “way we have always done it” and find the technology difficult to navigate.  As the technology advances and becomes more mainstream, many of the difficulties are being eliminated.  Many of the systems now provide for immediate access to each functionality and no longer require managers to log in and out of various systems.  Another concern with adopting such a system is the privacy and confidentiality concerns associated with much of the information.  As with any electronic based transaction or system, an employer needs to be aware of and take steps to protect privacy concerns.  This is especially true with systems that allow mobile access.  It is critical that the company only use a system with built in safety measures, including password protection and firewalls.  It is also important for human resources to train managers on the legal ramifications of not adequately protecting confidential employee information.  If used appropriately, such information is often more secure than the previous method of sending emails and circulating spreadsheets.

Performance Management

Many Millennials grew up with Facebook where the number of likes and comments are indicators of self-worth and acceptance.  These employees expect immediate feedback both positive and negative.  Most companies currently administer evaluations on an annual basis, which likely is not frequent or immediate enough to satisfy Millennials’ need for validation.  Some companies are moving to an electronic system that allows for more frequent employee evaluations, even as frequently as monthly.  These programs do not require a complete evaluation, but rather are quick snapshots of an employee’s performance during the month.  For example, the supervisors may give each employee a monthly report card, or list one positive thing the employee did that month.  As with any type of evaluation system, there are inherent legal dangers and consequences which must be minimized from the outset.  Supervisors must be trained in how to accurately complete the evaluations.  Additionally, the system must not just require or allow positive feedback.  In those situations where there is an underperforming employee, there has to be adequate documentation.  If an employee was written up for performance and then his monthly scorecard shows positive rankings, this can lead to confusion for the employee and problems for the supervisor.

If considering a monthly kudos system, processes need to be implemented which will allow a supervisor to “opt out” of the kudos for an underperforming associate.  Likewise, supervisors need to be trained on the impact of providing false positives during the evaluation process.  The “halo” effect, where a supervisor artificially inflates an employee’s evaluation, leads to problems during later disciplinary actions or termination.  Another hurdle with a more frequent evaluation system is supervisor buy-in.  Most employers have enough difficulty getting supervisors and managers to complete annual evaluations.  In order for the system to work, supervisors have to be on board.  If used properly, a frequent evaluation system in the form of report cards or “likes” can be an effective tool for performance management and employee satisfaction.

Employee recognition systems are also evolving in light of technological advances.  Companies such as Achievers Corp. have developed software programs that allow managers and employees to “post” information about high achievers in the organization as a way of publically acknowledging success.  Some companies are going so far as to track the number of positive comments made by employees and about employees, and post the leaders on the “leader board”.  One company which has recently implemented such a system has seen almost 100% support from managers and employees alike.  The theory is that employees will strive to achieve public recognition and therefore the system will provide for a more productive work environment.  This type of system which provides instantaneous public recognition is appealing for several reasons.  First, it provides positive feedback immediately.  Second, it raises the bar and encourages better performance by employees.  Third, it is done via technology in a public forum, which appeals to Millennials. In fact, it really is not much different than “liking” something or someone on Facebook.

There are dangers inherent in a public recognition system.  One such danger is the company relinquishes control over the system.  Employees are left to use their good judgment and common sense.  The employer needs to retain some control to proof posts for inappropriate content prior to publication.  Another problem that can arise is that employees or supervisors may play favorites, leading to challenges based on anti-discrimination laws.  A similar concern may arise when the manager is not playing favorites, but the positive comments are disproportionately made to males, and few are made to females.  Such a result could lead to an allegation of discrimination.

If you are considering an employee recognition system, you must develop clear written guidelines directing employees under what circumstances they can post a recognition and the specific manner in which the post may be drafted.  The written guidelines also need to include a specific prohibition against any inappropriate comments.  Finally, you should implement a review system where the company does an analysis of who is posting and about whom posts are being made to guarantee that the system is not having disproportionately favorable impact on any group.


While technology has made the workplace faster and easier in many respect, it can also create liability and risks.  Before adopting new technology in your workplace, you must carefully examine the risks and rewards, and then implement well thought out policies addressing the use of the technology.  Taking these proactive steps can help minimize the risks.