NLRB Hands Employers a Win (Seriously!): GPS Tracking of Employee Upheld

09 November 2015 Labor & Employment Law Perspectives Blog

It is no surprise that the National Labor Relations Board (NLRB) has been busy this summer establishing several principles that are frightening to employers. But in an unexpected turn of events, the NLRB Office of the General Counsel, Division of Advice, recently handed management a win. The Board held that installation of a GPS tracking system on an employee’s company vehicle did not require bargaining with a union because it was not a “material, substantial, and significant” change.

The employer was a beverage distributor that had a longstanding practice of using private investigators to conduct surveillance on employees suspected of stealing time and disciplining employees based on the results of such investigations. The union was aware of this practice and had no objection to it.

In this particular instance, however, the employer installed a GPS tracking device on one of its company vehicles to facilitate an investigation into an employee’s suspected theft of time. The GPS was used only to ensure that the private investigator could both maintain and regain visual contact if he lost sight of the employee. The employer ultimately terminated the employee based on the investigator’s observations, and the union filed a charge alleging that employer unilaterally installed the GPS and engaged in electronic surveillance without bargaining.

The NLRB held that the charge should be dismissed because the union was aware of and did not object to the employer’s practice of retaining a private investigator and because the GPS was only used in conjunction with the investigator’s observations. The NLRB noted that even on the one occasion that the investigator apparently relied on the GPS, he used it only to help track the employee when he lost sight of the truck in order to continue his personal observations. The NLRB further held that the GPS did not increase greatly the chance of the employee being disciplined because there was no evidence that any information from the GPS device was used to discipline independent of the investigator’s personal observations.

The NLRB concluded that the GPS tracker was not a “material, substantial, and significant” change to the terms of employment because it merely provided the employer with a mechanical method to assist in the enforcement of an established policy and practice.

Although the case is helpful to management, the rationale behind the decision is extremely limited to the facts at hand, and given the aggressive agenda the NLRB has followed, employers wanting to use this decision to engage in electronic surveillance do so at their own peril. The NLRB has repeatedly held that using electronic surveillance (i.e., hidden cameras, GPS, etc.) to monitor employee misconduct is a mandatory subject of bargaining. Therefore, employers that use such devices without bargaining with a union run a significant risk, especially if the use of such surveillance affects a large percentage of employees, results in more stringent requirements, or increases the chances of employee discipline.

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