By Seyfarth Shaw LLP on January 26th, 2016
Over the past several years, technology has dramatically increased employee
accountability in the workplace. For example, in an office environment,
employees are expected to respond to emails immediately because they are either
sitting in front of their computers or carrying a mobile device on which they
can access their email.
As for employees who work outside the office, the
availability of employer-issued phones and, alternatively, the proliferation of
BYOD policies, has resulted in off-site employees being generally just a phone
call away. In specific industries in which employees drive motor vehicles
while conducting business for the employer, yet another method of
accountability exists: Global Positioning Systems (GPS).
For businesses that provide transportation or delivery services, it is not
surprising to find that such employers have installed GPS devices in the
vehicles used by their employees. The use of such devices can benefit both the
employer and the employee in situations in which delivery status needs to be
checked or a vehicle breaks down.
In all likelihood, the employee in
these situations is aware that a GPS device has been installed on the company
vehicle he or she is driving and that the employee’s movements are being
tracked while on duty. Privacy issues tend to arise, however, when
employers use GPS data in connection with investigating alleged
misconduct in the workplace.
There cases in which courts have addressed the legal parameters of an
employer’s use of GPS devices to track workers in order to investigate
potential misconduct are few but nonetheless instructive.
In Elgin v. Coca-Cola Bottling Co. (E.D.Mo. 2005),
the employer attached a GPS device to a company-owned vehicle used by the
employee to service vending machines after a cash shortage was reported on a
number of machines. Although the employee was cleared of any wrongdoing
in the investigation, when he found out that a GPS device had been installed on
the company vehicle he drove during the investigation, he filed a claim for
intrusion upon seclusion under state law.
The court rejected this claim,
noting that the vehicle was owned by the employer and the only information
potentially revealed by the alleged “intrusion” was the whereabouts of the
company vehicle.
In another case, Tubbs v. Wynne Transport(S.D.
Texas 2007), the court dismissed an invasion of privacy claim against an
employer who had used information gathered by a GPS device that had been
installed as a matter of course on a company-owned vehicle driven by the
employee to perform his duties as a truck driver. The court did not,
however, provide any substantive analysis regarding its decision to dismiss the
claim.
Elgin and Tubbs both involved employers attaching GPS
devices to company-owned vehicles. The balance between the employer’s
interest in rooting out misconduct and the employee’s individual privacy rights
shifts, however, when an employee’s personal vehicle is at issue — even if it
is used for work purposes. InCunningham v. New York
Department of Labor (NY Ct. App. 2013), a state employee was
under investigation for falsifying time records and voucher information related
to work travel and had used his personal vehicle during work hours in
connection with some of the suspected misconduct.
As part of its
investigation into the alleged misconduct, the employer had a GPS device
installed on the employee’s personal vehicle to gather information about his
movements during periods in which he was suspected of misconduct. The employee
was ultimately discharged and filed suit to exclude the GPS data from evidence
at his disciplinary hearing based on federal and state constitutional grounds.
The New York Court of Appeals held that installation of the GPS device on
the employee’s personal vehicle was an unreasonable search under constitutional
law principles. Although the Court held the search was reasonable at its
inception because the employer had a reasonable suspicion that the employee was
engaging in workplace misconduct, the search was unreasonable in its scope
because it had not been designed to obtain only the information the employer
needed to determine if workplace misconduct had occurred.
Rather, the
employer had monitored the employee’s personal vehicle 24/7, as opposed to only
during working hours, and made no attempt to remove the device prior to the
employee’s scheduled vacation. The Court concluded that “[w]here an
employer conducts a GPS search without making a reasonable effort to avoid
tracking an employee outside of business hours, the search as a whole must be
considered unreasonable.”
However, the extent to which a personal vehicle is used for work purposes
can alter the analysis. In two cases involving the revocation of a New York
City taxi cab driver’s license for over-charging passengers, two New York city
state courts held that taxi drivers had no legitimate expectation of privacy in
GPS data gathered from the Taxi Technology System (TTS) installed on the
cabs.
The court also held that, even if the drivers had a legitimate
expectation of privacy in the data, the city had a legitimate interest in
determining whether or not the driver was overcharging passengers and had
narrowly tailored its search to obtain information from the TTS only during the
driver’s work hours. In these two cases, even though the cabs were
personally owned by the drivers, the court found that the cab drivers had
limited privacy rights with respect to the vehicles because they were open to
public use and subject to regulation by the state.
The regulatory
authority required that all city cabs have the TTS equipment installed and
drivers were required to use the system to transmit information regarding
location, trip and fare information to the regulatory authority.
The takeaway from these cases is that, although an employer appears to be
on solid ground attaching a GPS device to a company-owned vehicle and using
data gathered by the device in an investigation of workplace misconduct,
especially where the employee is aware the device is on the vehicle and the
information is only being gathered while the employee is on duty, caution
should be taken in attaching a GPS device to a personal vehicle used by the
employee for work purposes.
Employers also need to be mindful of complying with
state laws regarding electronic surveillance. California, Connecticut,
Delaware and Texas all have laws requiring either notice or consent prior to
placing a GPS on another person’s motor vehicle.
As the foothold of technology sinks deeper into the terrain of the
workplace, the privacy issues confronted by employers will only grow in
complexity. However, courts have been reticent about making broad
pronouncements about the intersection of law and technology in the
workplace. As the Supreme Court stated in United
States v. Kwon, a case involving a state employer’s review of an
employee’s text messages on a state-issued pager, “[t]he judiciary risks error
by elaborating too fully on the Fourth Amendment implications of emerging
technology before its role society has become clear.”
This restraint,
while understandable, can leave employers with unanswered questions about how
to balance the competing interests of legitimate business needs and individual
privacy concerns in the workplace, particularly where technology is involved.
Perhaps in 2016, the courts will offer more guidance in this
area. Stay tuned.
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