Know The Law: Company Cars Issued to Sales Representatives

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
Published: Union Leader
November 12, 2012

Q: My company’s sales representatives are issued cars strictly for use on sales calls and other work-related events. I believe one of my employees is violating this policy, using the car on his own time for his own personal travel. This would be easy enough to track with the car’s GPS system.  Is it legal to track my employee’s whereabouts during nonworking hours to prove my suspicions?

A: While employers may track the location of company property (the car in this case), using GPS devices to monitor employee activity (how and where your employee is spending his or her free time) raises important legal concerns you should be aware of.

To reduce the risk of lawsuits for such monitoring, the best practice for all employers to follow is to strike a balance between the company’s business interests and preserving some level of employee privacy.

The New Hampshire Constitution contains a right to privacy that applies to the private sector. A proposed law, HB 445 has been drafted that would specifically prohibit an employer from using electronic devices to track employees without consent of the employee or a court order. HB 445 has been recommended for legislation in 2013.

While there appears to be one employee you are particularly concerned with, you need to enforce your policy with all employees. Clearly state your firm’s policy on GPS tracking in writing, the same way you probably already notify employees that the company’s electronic systems and devices (laptops, cell phones, etc.) are subject to monitoring and inspection by the company at any time.  Your policy should also make clear that there is no expectation of privacy as to the company car. Obtain written acknowledgment from the employees that they understand the policy, and, of course, be sure to enforce the policy consistently across your company.

Be aware that while GPS monitoring can be a useful tool for employers, it can have a negative impact on employee morale. Employers must also be extremely careful not to obtain personal information (activity related to a legally protected status) and only use information gathered for proper purposes.

Courts continue to grapple with privacy issues and evolving technology in the workplace. Companies choosing to use a GPS type tracking device to monitor employees, at a minimum, should have a clear policy so that employees are aware their whereabouts may be tracked. As this is a developing area of the law, employers should consult with legal counsel before venturing down this road.