Can you check on work attendance by GPS?

Company A’s “Employee Handbook” and “Fieldwork and Business Travel Attendance Management” state that fieldworkers shall use GPS to register for attendance. Y is a salesman, and Company A gave him a work mobile phone, but he turned off the phone for many times during work, and failed to register for attendance. Company A fires Y for absenteeism. Y held that Company A used GPS to check on work attendance had infringed his personal privacy, so the relevant internal rules and regulations were invalid. Therefore, Y filed an arbitration against Company A on the ground that Company A had terminated the labor contract illegally.

The above case occurred in 2018, and finally the Suzhou court rejected Y’s petition (see (2018) Su 0402 Min Chu No. 5721). Then, after the implementation of the “Personal Information Protection Law”, will employers still be possible to check on work attendance by GPS?

To check on work attendance by GPS would obtain employees’ whereabouts, which belongs to sensitive personal information. According to Article 13, paragraph 2 of the “Personal Information Protection Law”, where it is necessary for the implementation of human resources management in accordance with the labor rules and regulations formulated in accordance with the law and the collective contract concluded in accordance with the law, the consent of the individual concerned is not required. However, Article 29 stipulates that the processing of sensitive personal information of an individual shall be subject to the individual’s separate consent. Regarding the application of these two provisions, whether an employer should obtain a separate consent of its employee to process sensitive personal information, it is still unclear from the perspective of legislation and in the judicial practice. In order to minimize risks, the safest way for an employer would be to obtain a separate consent regarding employees’ sensitive personal information. However, let’s assume that the subsequent rules are issued to clarify that employers do not have to obtain employees’ separate consent while handling employees’ personal sensitive information within the scope stipulated in Article 13, paragraph 2, then whether employers could use GPS to check on work attendance without any risks? The answer is negative.

No matter whether there is legal basis or not, the very first thing for employers to check on work attendance by GPS is that they shall explain the purpose and necessity of such management methods, and obtain the understanding of employees as much as possible. Otherwise, even if employees have signed the separate consent paper, they may have a negative mentality such as resistance, or the unease of personal privacy being monitored, which will bring a negative impact on the enthusiasm and stability of employment, which deviate from the original intention of attendance management. This very first thing is a test of HR’s wisdom. It is necessary to provide a well-founded explanation regarding the purpose, objects, specific GPS tools, and the scope of personal information, then employers could gain employee’s understanding and support, by which employees’ doubts and resistance may be eliminated.

In practice, while using GPS to check out work attendance, the following aspects deserve special attention. First, the selection of GPS tools. Using equipment/tools provided by employers is less risky than using personally-owned equipment/tools. There are various tools, employers could choose appropriate ones based on own needs, such as WeChat, DingTalk, etc. In order to avoid confusion with personal information and materials, and to better protect employers’ business secrets, it is recommended to use corporate WeChat accounts, DingTalk work accounts, etc. Second, the scope of objects. It is not necessary to check out work attendance of all employees by GPS, normally employers would choose those positions which do not have a stable workplace, such as drivers, sales, and after-sales service staffs.

Third, the rationality and boundaries of using GPS. Take “time” for example, it should generally be limited to working hours; for positions with an irregular working hour system or a comprehensive calculation working hour system, it can be limited to scenarios. If the time or scene setting is unreasonable, it may cause legal risks or huge cost risks, e.g., if the company stipulates that an employee can be located 24 hours a day, then the employee may propose that the company has violated personal privacy, or propose that any time and interval to be located are working hours, based on which they would ask for overtime pay.