Ask the Expert: Should I Disclose Tracking of Company Vehicles?
Question: Are we obligated by law to disclose that our company vehicles are geographically tracked? If so, what is the best practice when advising employees their company cars will be trackable at all times?
Answer: As a general rule, employers aren’t required to provide notice or obtain consent to install tracking devices on company-owned vehicles. There are no federal laws on tracking employees, and very few states have enacted tracking laws that apply directly to employers or businesses.
In states that address the legalities around tracking, the laws focus more on protecting against criminal behavior than business needs. Exceptions to the general rule are California and New York, which prohibit using GPS-tracking without employee consent, and Connecticut, which requires notice but not consent.
Other states have laws limiting employee tracking to legitimate business purposes or during working hours. In addition, almost all states with laws on tracking employee-owned vehicles require consent.
In summary, unless you are a California or New York employer, you don’t need consent if you are tracking an employee for business-related purposes during working hours on a company-owned vehicle. Straight forward answer, right?
Now, while an employer may not be obligated by law to disclose, many of the benefits of tracking may be lost if an employee is unaware. Monitoring employee activity can increase productivity and accountability, enhance safety, cut fuel costs, and ensure compliance and safety. These benefits don’t have a natural deterrent impact if the employee is unaware. In these situations, tracking is generally used as a disciplinary tool, perhaps decreasing employee satisfaction.
If your company uses tracking devices on your company-owned vehicles, then the best practice is to disclose this to your employees. You should adopt a tracking policy that identifies how monitoring company-owned vehicles plays a crucial role in growing your business.
The best way to accomplish this is to highlight the benefits to the business as well as the employee. In many situations, tracking devices add an additional layer of safety for the drivers. It’s also important to craft the policy so you are clearly tracking the vehicle rather than the person. While employees may be understandably resistant to tracking, upfront disclosure helps to ease employee concerns and provides the employer with maximum benefits.
As the law continues to develop around vehicle tracking, employers should consider a couple of additional open issues. Under the Fair Labor Standards Act (FLSA), employers must keep records demonstrating the total number of hours worked each workday and each workweek for non-exempt employees for three years. Most employers do this through a timekeeping system.
If your vehicle tracking data contains information relating to employee working time, however, an employee who sues you for unpaid overtime may claim the tracking data should have been retained and produced in the litigation.
In addition, under the FLSA hours worked is defined as all time an employee is “suffered or permitted to work.” Under strong case law, an employer can be liable for unpaid hourly wages and overtime for time an employee actually worked even if the employee didn’t put the time down on the timecard if the employer knew or should have known they were working “off the clock.”
If the employer’s vehicle tracking data shows employees are working beyond their scheduled or claimed hours, the data could be used as evidence that the employer should have known about the off-the-clock work.
Janae Ruppert is Of Counsel for Holland & Hart LLP in Cheyenne. She can be reached at jeruppert@hollandhart.com.
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