Monthly Archives: March 2013

GoldenEye – who’s watching you?

We all love a good James Bond film – plenty of action, guns, spies, a gorgeous woman, and Bond comes out on top. But when this becomes your reality, minus the action, guns, and gorgeous women, who will come out on top?

GPS technology is becoming a common tool used by employers to keep tabs on their employees whereabouts. This aims to prevent employees from abusing their privilege of having use of a work vehicle, diverting from their destination, and falsifying timesheets. That brand new iPhone 5 given to you on your first day of work may have seemed like a generous gesture at the time. But when you realise your employer has been using it to track you, I would imagine you’d like to throw their generous gesture right back at them.

Why shouldn’t an employer track their employees? If their employees are where they say they are, and doing what they say they are doing, what’s the problem? Employer-friendly apps are in abundance. Beginning at the tempting price of ‘FREE’, these apps are advertised as perfect for tracking your friends, children and work colleagues. ‘Trackster’ ($2.59) is a popular choice, claiming it can “make a big difference to businesses” by increasing productivity. These GPS tracking apps can track an employee’s whereabouts, how long they have been there for, where they have been previously, and follow them while they travel. James Bond isn’t so unrealistic after all!  But with this incredible technology comes major issues of privacy, consent and reasonableness.

Should an employee have to know and consent to being ‘spied on’ by their employer? And if they do consent, where does the ‘spying’ stop? It is unreasonable for this tracking to be 24/7 surveillance.  Surely it should shut off as you leave the office at the end of the day, and resume upon your return the following morning. Yet none of the apps pride themselves in having this automatic capability yet. If your iPhone or Android is being tracked during work hours, then chances are your employer can check your whereabouts any time of the day or night. The old croaky call into work on a Friday morning because you have come down with something overnight will no longer suffice when your employer can log into their Bond technology and see you happened to be within a 30 meter radius of the local bar only 4 hours ago. Good luck explaining that one.

This leads into the issue of privacy. Surely it is none of your employers business where you were last night, whether it be a bar, gay strip club or another employee’s residence. This could lead to all sorts of other employment issues – discrimination, workplace bullying – don’t get me started! So the decision to ‘spy’ on employees could have adverse effects. In 2010 the Law Commission reviewed the law of privacy and considered the issue of surveillance in the workplace. Their report acknowledged the concern of the inequalities of power between employers and employees. The issue stated that “employees cannot be assumed to have freely consented to restrictions on their privacy, and workers need some legal protection of their privacy in order to redress the power imbalance”. However the Commission came to the conclusion that the existing law, in particular the duty of good faith contained in the Employment Relations Act 2000, was at present, adequate to deal with workplace surveillance issues.

To combat privacy issues, companies can issue policies so employees understand they shouldn’t have any expectation of privacy during work hours or when using a work vehicle. But this isn’t a guaranteed solution. What’s to stop an employee purposefully misplacing their smartphone, or accidentally leaving it at work? This would allow them some privacy and completely undermine the whole tracking regime. Ha! This Bond technology isn’t foolproof!

Or that’s what a Christchurch man thought until he was dismissed for serious misconduct after falsifying his timesheets. Mr Stuart was discovered by GPS technology fitted into his work vehicle when his supervisor became suspicious and requested their employer review the GPS records. This review revealed that often Mr Stuart’s work vehicle was parked at his residence well before he claimed to be finishing work each day. The Employment Relations Authority found that Mr Stuart was justifiably dismissed as he was employed in a position of trust, and falsifying timesheets was considered to be serious misconduct in the company’s Code of Conduct. This recent decision indicates the reality of GPS tracking in the workplace. Understandably employers want to maximise productivity, and there are employees out there willing take advantage of any situation.

Is GPS tracking the solution? Employers will love it – nothing will go unnoticed. Employees will hate it – nothing will go unnoticed. What is reasonable ‘spying’? We will have to wait with anticipation for this Bond sequel to play out.

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