The issue of privacy when controlling mobile employees through a GPS has run rivers of ink, to the point that there are many people on both sides, company, and workforces, who are doing the same question.
There are companies that want to locate or track their employee’s status through GPS. With this GPS tracking system, you can manage your activity and know where you are at all times. But is it legal to use this resource in a company?
Employers are allowed to monitor their employees, but only within very narrow limits. Surveillance and control systems, which are only intended to monitor the behavior of workers in the workplace, are completely prohibited by the Labor Law (Art. 26 ArGV3). Where surveillance is necessary, for example, to prevent theft or to better plan operations, they must not interfere with the employees’ freedom of movement.
Monitoring by GPS is allowed, according to privacy advocates. But only if it is proportionate, so employees are not unnecessarily controlled and stressed. The employer must, therefore, monitor his employees permanently only on the screen, if this is necessary for security reasons, for example. Such so-called real-time monitoring is permitted, for example, for tracking cash transports or when transporting dangerous goods.
The employees have been informed about the monitoring and have been informed about why the monitoring takes place, which data is collected, who has access to this data, how long they remain stored and that employees have a right of access.
The first thing you should do is inform the worker that he will be located via GPS to manage his work benefit. In this way, you will know that the data collected with the GPS can be used for purposes such as process optimization, increased security, task control, motivation and performance programs and also possible penalties.
Employers can place GPS devices on a variety of equipment, including vehicles and cell phones. This gives the employer-up-to-the-minute details about the location of an employee, revealed by the longitude and latitude coordinates, which are then communicated to a team that the employer can monitor. If installed in a vehicle, the GPS device can also provide the speed and direction of travel of the vehicle.
Is it legal to put GPS on a mobile phone to a worker?
As long as the phone or tablet is owned by the company and not the worker, the answer is clear: yes. Otherwise (if the device is owned by the employee) he must be notified and give his consent to be located through his telephone.
The employer can have the GPS technology and place it on the company device that his employee carries with him without the need for prior consent from the worker.
Factors to consider for GPS location
Although the employee has been versed in this step, you cannot lose sight of the principle of proportionality so that locating the employee through GPS is completely legal.
The Constitutional Court has established a series of limits of what it considers are the fundamental rights of the worker that the employer must respect. In this context, the methods that pursue GPS tracking will be legal as long as they meet the following requirements:
- Suitability Judgment
GPS installation must be capable of achieving the purpose for which it is used.
- Trial of necessity
This measure is necessary as there is no other more moderate remedy to achieve the purpose with the same effectiveness.
- The judgment of strict proportionality
This measure must be balanced, deriving more benefits or advantages of general interest than damage to other values or assets in conflict.
To know whether to use a GPS tracking system to control workers, it is legal to make a case study and be very clear that, under no circumstances, the company can locate the employee outside of his working day.
Therefore, the equipment or vehicles in which the GPS tracking system has been installed has the option of deactivating this function in situations where they will be used for private purposes.
What the Data Protection Law says
The LOPD makes it clear that when dealing with private data it is mandatory to protect them unless there is legislation against it. And that is what happens with article 20.3 of the Workers’ Statute, “the employer may adopt the measures that he deems most appropriate for monitoring and control to verify compliance by the worker with his labor obligations and duties, keeping in his adoption and I apply the consideration due to their human dignity ”
In any case, it follows that, although the employer can place a GPS in the worker’s mobile, that does not exempt him from the obligation to inform the specific employee, who has the right to know that he is being “monitored. ”
How long can the information collected be saved?
In this case, there are also a series of policies for the conservation of the data obtained that claim not to violate the rights of the worker. The maximum time that the information obtained can be saved is 2 months, although this location data can be kept for longer.
Data saved for longer
- If this data is used to demonstrate the execution of service when no evidence can be provided by other means. In this case, you can keep the information for up to one year.
- If there is a specific regulation that provides for this situation, during the period established.
- If conservation is used to keep a history with all displacements to optimize the routes made, it can also be preserved for a maximum of one year.
Data that the employer can have through GPS
- Time the day begins
- Hours at which stops are made
- Places where you pass with the company vehicle and stops
- Car speed
- Times when the car is running and when it is stopped
- The mileage made in each working day
- In any case, nothing related to your personal or family life and everything that belongs to the scope of your privacy.
As you can see, locating the employee through GPS must meet purely professional criteria and be framed within the scope of their labor services provision.