New Jersey Tracks Public Employees Through Cellphones

State officials say the GPS surveillance of remote workers, such as fire and housing inspectors, helps in responding to emergencies and improving productivity.

by Andrew Seidman, The Philadelphia Inquirer / April 13, 2015

(TNS) -- The state of New Jersey tracks hundreds of workers, gathering data from their cellphones about when they clock in, where they are at any given moment, what route they take to get there, how fast they drive and whether they make unauthorized stops.

In short, supervisors create visual maps of workers' days.

State officials say the GPS surveillance of remote workers, such as fire and housing inspectors, helps in responding to emergencies and improving productivity.

Workers' advocates counter that this new frontier in workplace monitoring can sap morale and engender resentment toward employers.

"The public is much better off with caseworkers, supervisors looking at their reports instead of following their movements all day long," said Lew Maltby, president of the nonprofit National Workrights Institute in Princeton.

"It pulls supervisors into the wrong sort of employee evaluation," he said. "Does it really matter if the guy stops at 7-Eleven for a Coke during the course of the day? Not really."

Verizon Wireless rolled out the Field Force Manager app in 2006, said Steve Witting, the company's director of data sales for the Philadelphia region. Businesses of all sizes across the country are using it, he said.

Customers have reduced their insurance rates by monitoring vehicles, he said, and boosted morale by awarding bonuses to productive workers.

"You're going to have those individuals that want no part because they think Big Brother is watching," Witting said. "But my experience is that's not the case."

New Jersey's Department of Workforce and Labor Development began using the app in 2011. The Department of Community Affairs started two years later.

At least 440 state employees across the two departments are required to carry the cellphones and log on to the app during work hours, officials said.

New Jersey police departments and municipalities also use it, according to Verizon. The state says it used the same training as Detroit and Chicago.

A spokesman for Mayor Michael Nutter said Philadelphia was "piloting several technology solutions."

"The focus of the pilot is to track city vehicles, accurate odometer readings, and verify compliance with acceptable use policy," spokesman Mark McDonald said in an email.

In Pennsylvania, "there is no blanket practice commonwealthwide where we are tracking the movements of commonwealth-issued mobile devices," said a spokeswoman for the Department of Labor and Industry. However, the spokeswoman couldn't say last week whether individual agencies engaged in such monitoring.

In New Jersey, "GPS automated cellphones will allow management to assure personnel accountability during assigned working hours," reads the state Department of Labor and Workforce Development's "personnel accountability and asset tracking" policy, adopted in July 2011.

Failure to follow the policy could result in disciplinary action, says the policy, which the department provided to The Inquirer.

Workplace monitoring isn't entirely new. Employers have long had access to employees' emails, for example. Some industries began using GPS years ago. Logistics companies such as UPS need to know where their trucks are at all times.

Given recent developments in technology, though, "there's much more workplace monitoring now than ever existed previously," said Steve Suflas, a labor litigator and managing partner of Ballard Spahr's New Jersey office.

GPS monitoring raises two main legal issues: privacy and the right to collective bargaining, he said.

Public-sector employees, like those who work for New Jersey, have greater constitutional protections than private-sector workers against employers' searches, Suflas said.

The U.S. Supreme Court in 2010 said there were circumstances in which government employees may have a reasonable expectation of privacy. But the court ruled a California city didn't violate an employee's Fourth Amendment right against unreasonable searches when it searched his pager because the review served a legitimate work-related purpose and wasn't excessive.

"Employers have to be prepared to make abundantly clear nine ways from Sunday that employees understand that they will be monitored and that they will have a lessened expectation of privacy in these circumstances," Suflas said.

"The real issue is: What does that mean about off-duty monitoring?"

The Department of Labor policy states that state-issued cellphones "must be carried during work hours."

The Department of Community Affairs hasn't adopted a policy, even though its employees have used the app since 2013, a spokeswoman said. A policy is forthcoming, the department said.

An Aug. 4, 2014, memo circulated among DCA staff says "policies need to be established that stipulate to the employee that the tracking of the phone will automatically start at 8 a.m. and end at 5 p.m."

"The policy should give the option to the employee to turn off the locator for lunch, as well as require it be turned on for all overtime assignments," says the memo, obtained by The Inquirer through a public-records request.

Without a written policy, "that usually means any supervisor can look at anything anytime they want to," said Maltby, of the National Workrights Institute.

Written procedures may not be legally required "but it's an expectation," said Suflas, the labor litigator. "Judges and juries will expect something like that exists."

Philip L. Harvey, professor of law and economics at Rutgers-Camden's law school, said that for unionized workers, "a question might be raised as to whether the practice constitutes a change in the terms and conditions of their employment, in which case their union would have the right to negotiate over the change."

New Jersey did not negotiate the policy with union members because it "did not impact the terms and conditions of employment," said Kerri H. Gatling, a spokeswoman for the Department of Workforce and Labor Development.

"However, we did meet with union representatives when drafting the policy," she said.

New Jersey officials "told us the state has the right to know where their property is," said Michael Scorzetti, trustee chair of the International Federation of Professional and Technical Engineers, Local 195. The union represents 6,500 public employees in New Jersey.

The state initially explained that the technology was needed for safety purposes, Scorzetti said. Now it's used to discipline employees, he said.

"Of course, we're going to be against it," he said.

©2015 The Philadelphia Inquirer Distributed by Tribune Content Agency, LLC