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There are lots of GPS tracking devices out on the market.  As an employer, you can install one on a company car, no problem.  Install it on an employee’s ID badge, yep.  Install one on an employee’s personal car . . . yes. And under certain circumstances you can install one to do limited tracking on your workers who use their personal car for work tasks outside the office.

However installed GPS tracking devices have one major limitation. They only track your employee’s car’s location. They don’t track your employee.

How can you track your employee’s location?  How can you see if your employee has decided to go to the racetrack instead of attending that expensive seminar you paid for?

One way might be to use an employee’s ID badge as a tracker. The problem with this is it only works inside the workplace, and the device becomes ineffective when removed by the employee.

Smart phones are amazing devices, because they can track and transmit locations just as accurately as installed GPS devices.  As a result of the need to accurately locate 911 callers, phone GPS transmitters have become almost universal in phones – in fact, many states require phones to be sold with the transmitters installed.  What’s more amazing is that the law treats the two devices – GPS transmitting devices and phones – differently, even though they provide similar data.

Employee GPS Tracking Laws

The use of GPS tracking technology for locating employees in the workplace has now become fairly widespread. More than 53% of all employers are using GPS technology to track their vehicles and workers. It is now cost effective for employers with as few as 8 staff members to use some type of technology to track their employees’ locations.

An examination of two recent appellate decisions in the State of New York demonstrates why the courts will apply different standards to determine whether GPS tracking is legal for employers depending on whether the tracking is done by an installed device in a car, or whether the tracking is done on a smart phone.

In examining the legality of using a GPS tracking device, it is important to first look at whether there are limitations on its use due to privacy issues.

First, No federal statute prohibits employers from using GPS tracking on cellular phones  to locate the positions of their employees. And, second, the only state to require notice that an employer is using GPS tracking on a cell phone is Connecticut. California and Texas have recently passed legislation requiring notification when a tracking device is placed on a car.

Therefore, there are no statutory limitations on an employer location tracking its employees with a GPS tracking device.

we recommend that all employers give notice of this policy and have its employees acknowledge the policy in writing.

Three states now would require that an employer notify its employees that it does use GPS tracking technology to monitor the location of its employees during work hours.  This is not a major limitation.  In fact, we would recommend that all employers give notice of this policy and have its employees acknowledge the policy in writing.

Although there are no statutory privacy laws that would significantly restrict using GPS location tracking technology in the workplace, courts have begun to consider this matter, and have laid down some guidelines on the limits that might be placed under state law on this type of monitoring.

Courts have traditionally found a low expectation of privacy regarding workplace monitoring.  Unless the invasion of privacy is unreasonable to the extent that it implicates highly personal information about the worker, the monitoring is found not to have violated the worker’s privacy rights.

Prior to GPS, in determining whether there was an invasion of privacy, courts examined whether there was penetration of a zone in which a person would reasonably expect privacy, and whether the intrusion was offensive in light of the motives and objectives of the intruder.  (See, Miller v. NBC, 187 Cal.App.3d 1463, 232 Cal.Rptr. 668 1986) and Shulman v. Group W Productions, 18 Cal.4th 200, 955 P.2d 469, 74 Cal.Rptr.2d 843 1998.

Monitoring Employees GPS Locations – The First Case

The first employee GPS monitoring case came from New York.  In Cunningham v. New York State Dept. of Labor (2013 NY Slip Op 04838), New York’s Appellate Division heard a case in which the employee was subjected to discipline based on evidence obtained through the use of a GPS tracking device installed on his personal car.

Michael Cunningham worked in the state’s department of labor in a management position.  He was a 20-year veteran of the department and much of his work was performed either in the field or in remote locations.

His employer suspected that he was submitting false time reports and taking unauthorized absences.  They believed he was claiming he was on extended business trips, when he had actually returned home much earlier than his timesheets showed.

The employer hired an investigator to follow his car to confirm their suspicions.  Cunningham was successfully able to elude the tailing investigator several times.  Thereafter, the employer attached a GPS tracking device to the wheelbase of Cunningham’s personal car, without Cunningham’s knowledge.

The employer tracked the movements of Cunningham’s car for one month.  During that time period, the GPS tracking device required two replacements.  Through the evidence obtained by the tracking device, the employer brought disciplinary charges against Cunningham which resulted in termination of his employment.

The reviewing court found that the use of GPS tracking device to confirm suspicions about Cunningham’s absences and timekeeping records was reasonable.  It further held that tracking the car’s movements for one month was a reasonable length of time.

However, the court also ruled that the search was excessively intrusive.  Because the employer was tracking the movements of Cunningham’s car 24/7, and this would include considerable time periods when Cunningham made no claim that he was working, the search exceeded its permissible scope.  The employer, who replaced the GPS device twice during the surveillance, could easily have removed it when Cunningham took a personal vacation.  The court found that the employer failed to make a reasonable effort to avoid tracking Cunningham when he was outside of business hours.

A few months later, the U.S. Supreme Court stepped into the fray in a criminal case, but may have dealt a blow to the use of GPS devices which are attached to cars.  In United States v. Jones 132 S. Ct. 949, 565 U.S. ___ (2012), Justice Scalia reasoned that the trespass involved in placing a GPS device in a car invades a person’s privacy.  The concurring opinion, moreover, suggested that any long-term GPS tracking would be an invasion of privacy because it would reveal a wide range of personal information, including familial, political, religious and sexual associations.

Cell phones, however, have not received equal treatment from the courts.  In United States v. Skinner 690 F.3d 772 (6th Cir. 2012), the Court held that there is no reasonable expectation of privacy attached to the location transmitting signal of a cellular phone.  If there was, it would be an invasion of privacy to use scent smelling dogs to trace a suspect.  In Skinner, the Court explicitly differentiated placing a GPS device in a car in the Jones case, from using a person’s cell signal to track location.  The former involves a trespass, the latter does not.

With the preferential privacy treatment given to cell phones over placing GPS devices in cars, it would seem logical that employers should use the GPS tracking technology in cell phones, as opposed to placing a device in an employee’s personal car.  While there are still good business reasons for GPS tracking company-issued cars, tracking the movements of employees may be more important, especially in this age of telecommuting and distant working.

In a poll of professionals across the US, 56% of polled professionals had their smart phones paid for by the employer.

Therefore, employers can issue phones that have GPS tracking software installed, to allow them to monitor their employee locations.  Again, we would recommend that notification be made to the employee, especially because there may be tracking in off-work hours.  This is an attractive alternative to the stealth, and, ultimately failure, employed in the Cunningham case, where the tracking becomes so pervasive that it is held to violate the worker’s reasonable expectation of privacy.