Earlier this year, a woman sued her former employer for invasion of privacy and retaliation, claiming that she was fired after refusing to use a GPS tracking app that her employer required to be run at all times on her company issued mobile device, even outside of work hours.  That case appears to have been settled out of court, however in another case the National Labor Relations Board (“NLRB”) recently found that, at least in circumstances involving investigations of misconduct, employers may be entitled to track employee movements.  Specifically, the NLRB’s Division of Advice determined last month that an employer’s use of GPS tracking to monitor a unionized employee under investigation for misconduct did not constitute a “material, substantial, and significant” change in employees’ terms and conditions of employment.  Accordingly, the NLRB concluded that the employer had no obligation to bargain over the installation and use of the GPS device.

At issue was a collective bargaining agreement that, among other things, prohibited employees from stealing time.  As an established practice that was uncontested by the workers’ union, the employer would retain a private investigator to follow an employee suspected of stealing time and use its investigatory findings for disciplinary purposes.  The employee discharged in this case had been followed by a private investigator, who in addition to videotaping the employee on driving routes over the course of four days, placed a GPS tracking device on the employee’s vehicle for the purpose of maintaining and regaining visual contact.  The investigator personally observed the employee engaging in misconduct and, on one occasion, lost contact and used the GPS device to determine the employee’s general location.  Based on these observations of misconduct the employee was terminated, after which the union filed a charge alleging that the employer unilaterally installed the GPS device and engaged in electronic surveillance in violation of labor laws.

The NLRB previously has held that an employer’s periodic use of hidden cameras to investigate specific cases of suspected wrongdoing is a mandatory subject of bargaining.  The NLRB therefore found in this case that the use of the GPS device was a mandatory subject.  Under labor laws, however, the NLRB held that the employer only violates its duty to bargain over a unilateral change in terms and conditions of employment if the change is a mandatory subject and also constitutes a material, substantial, and significant change in the terms and conditions of employment.  The NLRB found that the use of the GPS device was not a significant change.

To support its reasoning, the NLRB relied on its previous finding that a unilateral change is significant when it “results in more stringent requirements or would likely impact employment security.”  Here, the NLRB determined that, because the employer had an existing practice of monitoring employees suspected of misconduct through the use of a personal investigator, employing GPS tracking “merely provided a mechanical method to assist in the enforcement of an established policy,” and therefore did not constitute a significant change.  The NLRB also concluded that while the GPS device in this case provided useful evidence, such information was additive and did not increase the likelihood of employee discipline, nor did it provide an independent basis for termination.  The NLRB recommended that the union’s charge be dismissed absent withdrawal.