Field Employee Surveillance: What’s Legal?

If you’ve been in the field service or transportation businesses for any amount of time, you’ve seen a lot of changes in recent years. HOS logging, formerly done in paper logbooks, is increasingly moving to EOBR, ELD, and AOBRD devices, while vehicle telematics is revolutionizing everything from fleet management to driver safety — keeping employees safer, lowering liability, and giving some breathing room to business’s notoriously thin margins. If you’ve been slower to adopt telematics because of legal or ethical concerns, if your drivers are giving you pushback, or if you’re considering a private investigator for electronic surveillance, let’s take a look at what the law says.

 

How Fleet Management Hardware Works, and How it’s Legal

If you’re unfamiliar with the acronyms above, let’s summarize briefly. An ELD is an electronic logging device, capable of supplementing or taking the place of paper-based HOS (hours of service) and RODS (record of duty status) logs. An EOBR is an electronic on-board recorder, and an AOBRD is an Automatic On-Board Recording Device. To learn more about the laws pertaining to these devices, you can refer to 49 CFR 395.15.

As for their legality, these compliance tools are legal — right down to their telematics and GPS tracking capabilities — as established by United States v. Jones and Grady v. North Carolina. But there’s a catch, just as there is for electronic surveillance in private life: it depends on who owns the vehicle. If it’s a company asset, you’re well within your rights. But what if it’s an employee vehicle?

 

Surveillance and Employee Vehicles

For larger fleets, where the business owns or leases the vehicles and the equipment they contain, we’ve already seen how the question of ownership plays into the legality of common telematics and tracking tools. But that, in turn, raises another question: what if you’re a smaller business, one whose employees own or lease their own vehicles for use during work time?

Some fleet management and field service management apps are tailored precisely for this purpose. Not all of them are DOT-compliant (they need to interface directly via the vehicle’s diagnostic port, USB port, or another dedicated connection). In any event, because the vehicle owner’s consent is needed, you would need to obtain the express consent of the vehicle owner in order to use one of these devices, and we can’t emphasize strongly enough that this consent should be obtained in writing and kept on file.

 

Employee Surveillance and Private Investigations

So how does this tie back to the private investigator’s trade? One of the most useful tools provided by GPS tracking and modern telematics equipment is geofencing, the ability to set acceptable geographic boundaries within which your vehicles can operate. After all, you want to know that your employees are where they say they are while they’re on the clock. Some deviations are to be expected — we all need to stop for gas and food, after all — but others can indicate that you’re paying for hours spent snoozing rather than working. GPS also helps employers identify moonlighting (using company vehicles off company time for non-company purposes), which can raise liability and insurance concerns. And of course, if your employee says he’s on a service call while he’s shooting the breeze with friends at the bar, that raises a whole other set of questions.

Barefoot Professional Investigations is often called in for employee background investigations, verifying or disproving a range of misconduct from workers’ compensation claims to fraud, embezzlement, and billing irregularities. Electronic surveillance is often a key element of our work, but there are legal and ethical limits to what we can do, just as the law places limits on your telematics use. But if you’re looking for an extra set of eyes to make sense of what your devices and software are telling you, or if you need to undertake further research to determine next steps, reach out to us today!