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Remote tracking in the age of privacy: Navigating the legal minefield

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As a business owner, have you considered how implementing remote work technology can affect your business workflow? Imagine having an AI-driven centralized dashboard where you can view the real-time location of a delivery vehicle or ensure the safety of your field workers. Despite offering immense operational benefits, this innovative monitoring solution is, however, stamped with serious questions about privacy and compliance. 

If you are implementing these remote tracking tools in your system, be prepared to navigate the potential risks of legal complexities, from lawsuits to hefty fines. So, how will you find the right balance between leveraging remote tracking and protecting personal rights? Let’s find out.

Benefits vs. backlash of remote tracking 

Whether a large corporation or an SME, remote tracking is now a compelling case for every business. Implementing this system enables logistics companies to improve their delivery ETAs and lower fuel costs. Construction companies can efficiently allocate their workforce. Analyzing the collected data empowers managers to gain effective operational insight.

The moment of backlash arises when organizations start micromanaging and recording information of individual employees instead of aggregating and collecting anonymous data. Even if done unintentionally, this action will lead employees to perceive the tool as intrusive and a sign of mistrust from the company. As this sense of being spied and controlled intensifies, their morale will plummet, resulting in a decline in productivity and retention. 

As the owner, you must take swift action to escape these unwanted internal and external backlash. If not addressed sooner, it will drive regulatory complaints and lawsuits. Amidst all the possible repercussions, two major conflicts are associated with legal rights. For businesses, it is to safeguard their property and ensure efficiency.  For employees, it’s the right to privacy and autonomy as individuals. These two might be on distinct grounds; however, they are correlated. The intrusion of employees’ private space not only affects the workplace dynamic but also harms the company’s image.

The regulatory titans – GDPR and CCPA

Two regulatory frameworks are effective in maintaining monitoring practices by organizations, and their long shadows extend far beyond their borders.

The General Data Protection Regulation (GDPR)

The GDPR is the global standard that governs the data of individuals in the EU. While this regulatory body is renowned as one of the world’s toughest privacy laws, its principles are deceptively simple, encompassing lawfulness, fairness, and transparency. 

What does this imply for organizations implementing remote tracking? To maintain compliance, companies must have a specific and justified legal basis to process location data. Here, employee consent and the presence of legitimate interest are the most relevant bases.

  • Consent must be “freely given, specific, informed, and unambiguous.” You cannot coerce the employees with a “take it or leave your job” ultimatum. Consent must be voluntary.
  • Legitimate interest is identified into three delicate parts:
    • Determine the precise and essential interest for tracking (why).
    • Prove that tracking is the most effective solution to achieve it.
    • Balance it against the individual’s rights and freedoms.

Crucially, GDPR mandates powerful individual rights: 

  • The right to be informed (know they’re being tracked), 
  • The right of access (see the data), 
  • The right to erasure (deletion of data). 

Non-compliance would result in fines of up to €20 million or 4% of global annual turnover, whichever is higher.

The California Consumer Privacy Act (CCPA/CPRA)

The CCPA, accompanied by the CPRA, is the US benchmark that grants its residents the right of autonomy over their personal data. In the context of the remote tracking initiatives by organizations, the core rights that apply here are:

  • The Right to Know: Individuals can enquire about what personal data is collected, including precise geolocation data.
  • The Right to Delete: They can request the deletion of the recorded data, regardless of whether the purpose is served or not.
  • The Right to Opt-Out: They have the right to opt out of the “sale” or “sharing” of their personal information, including providing location data to a third-party analytics firm.

Here, the compliance risk is especially severe. In cases of data breaches, potentially due to inadequate security measures, it allows for a private right of action. Beyond a class-action lawsuit totalling millions, statutory damages add up to $100 to $750 per consumer per incident.

That is why business owners must be cautious of compliance risks. The legal penalties won’t end with a single fine; you might also be slapped with class-action lawsuits. A poorly implemented employee tracking system could become the basis for a harmful lawsuit alleging systematic privacy violations.

Navigating with a risk-based compliance framework

You must adopt a strategic compliance framework to deploy remote tracking lawfully and ethically into your business:

  • Conduct a Legitimate Interest Assessment (LIA): Conducting a LIA helps ensure the legitimacy of your purpose (like security or operational efficiency) and justifies the intrusion of privacy, allowing responsible tracking. Present a solid explanation of why and how your interests outweigh individual privacy rights.
  • Prioritize transparency and consent: Be open about every aspect of tracking when informing your employees about it. Provide a clear document or notice detailing what data will be collected, why, for how long, and if it will be shared. For the collection of sensitive data, first obtain a willing consent, provided that it is specific and easily retractable.
  • Implement data minimization and security: Deploy data minimization practices by collecting only essential information and anonymizing it when feasible. Leverage strong cybersecurity measures to safeguard the collected data, thereby preventing data breaches, which could lead to both security failures and privacy violation penalties.
  • Be mindful of jurisdictional requirements: Tracking employees in the EU? You must comply with GDPR. Establish clear governance by designating specific personnel in the compliance department, such as a Data Protection Officer (DPO), and ensure detailed records are maintained as a legal requirement.

In essence, modern businesses must revise their tracking practices by prioritizing transparency, autonomy, and accountability. This shift will help mitigate compliance risks, enhance business relationships, and promote a healthy work culture. Accompanied by ethical practices, you can position your company towards success where privacy is respected.

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