Increasingly, employers are turning to GPS tracking to monitor employees and their use of vehicles within the company’s fleet. If you own your own fleet, have had the misfortune of suspecting an employee of vehicle or time misuse, and are entertaining the thought of installing a GPS tracking device on each of your vehicles, you must proceed with caution and follow some simple rules to ensure you are conducting the GPS surveillance legally.
An attorney with Fisher & Phillips, Bradford LeHew, feels that two recent cases speak to the issue of privacy best: US v. Jones and Cunningham v. New York State Department of Labor, both of which we’ve reported on here at RMT.
The Cases
The Jones case raised the issue of privacy in your own personal vehicle with respect to the Fourth Amendment’s protection from unreasonable search and seizure. The justices agreed that relying on the GPS data violated Jones’ Fourth Amendment right and that the government “physically occupied private property for the purpose of obtaining information.” Justice Sotomayor said, “GPS Monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” The justices agreed that the act of GPS monitoring of suspected criminals is sort of like having a police car tail you. Sotomayor added, “because GPS monitoring is cheap in comparison to conventional surveillance techniques and by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.”
In Cunningham v. NY State Department of Labor, an appeals court in New York decided in favor of the state, saying that the state was indeed able to install a GPS tracking device on the personal vehicle of an employee suspected of misusing his time on the clock (keeping inaccurate time sheets and taking time off of work without receiving proper authorization to do so.) The state tried to conduct the usual surveillance where an investigator follows him throughout the day, but after some time with no results, they obtained permission to use a GPS device. The device was placed on Cunningham’s car, the falsified time sheets were confirmed, and although the state attorney general’s office granted the placement of the devices, Cunningham sued, claiming this act was illegal. The court felt otherwise: a 3-2 ruling was handed down, stating that the use of the devices was, in fact, reasonable. Why did the court side with the state? Three main reasons: there was an attempt made to monitor the suspect by tailing him first, and the attempt failed; Cunningham was made fully aware the state was onto him, meaning the collection of data during work hours should have come as no surprise; and the device was not constantly collecting data.
How Do Employer-Owned Vehicles Compare?
LeHew said, not much different, using a package delivery company as an example. The company had GPS tracking devices on some of its fleet to study the efficiency of the delivery routes, perfectly legal as the employee’s affected were notified of the prescence of the devices. LeHew said company vehicles should be thought of in the same way as company-owned e-mail, phone, and computers: there is no expectation of privacy when it comes to these things. In his mind, LeHew feels employers should be able to assure employees are doing what they are supposed to do, where and when they are supposed to do them. If that means GPS monitoring, so be it.
What Employers Can Do
The first step, according to LeHew, is a clearly stated policy on such a practice, especially assuring each employee knows the company might at some point track their location using a GPS device. This policy should specify instances GPS monitoring might be used to benefit the employer. The policy should serve the best interest of the employer while still preserving the privacy rights of the employee when they are not at work.
It is possible to deactivate the tracking device, and employees can be trained accordingly in this practice. Assure managers are made aware this type of monitoring must not be overused. The best way, LeHew said, to assure employees aren’t conducting personal business during company time: requiring employees to submit mileage logs that can be compared with the car’s odometer. Remember to exhaust all possibilities prior to using a GPS tracking device.
