In January, the Supreme Court ruled that law enforcement must obtain a valid search warrant prior to placing a GPS tracking device on a suspect’s vehicle. In United States v. Jones, Case No. 10-1259, the Supreme Court determined that placing the GPS on a suspect’s vehicle violated the Fourth Amendment, which protects against unreasonable searches and seizures. The Fourth Amendment applies only to actions taken by those acting on behalf of federal, state or local government; however, the Supreme Court’s decision may apply to the actions of franchises that track the movements of employees.
Franchises that track their employees (who utilize company vehicles, in particular) with GPS devices should be aware of the privacy and liability issues that can arise from such action. Justice Scalia, who authored the majority opinion in Jones, concluded that monitoring an individual’s physical location through the use of a GPS device did not implicate any privacy issues. Justice Scalia reasoned that the location of a person or vehicle in a public place is not private. Five other justices, while agreeing with Justice Scalia’s overall decision, disagreed with the notion that GPS devices do not infringe on a person’s privacy. Justice Sotomayor stated, “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.” In short, five justices of the Supreme Court determined that tracking an individual with a GPS device potentially infringes on that person’s privacy. The question is whether other judges share the same view and would recognize a claim for invasion of privacy based on an the use of a GPS device to track an employee’s movements. Accordingly, employers should be cognizant that unfettered tracking of an employee’s physical location may result in liability.
Of course, utilizing GPS devices can create other issues for employers as well. For example, tracking an employee may reveal that he or she visited a synagogue or health care clinic, inadvertently providing information about that employee’s religion or health status. The employee could then use the employer’s knowledge to support a claim of discrimination. Employers should take measures to insure they track employees’ movements only during working hours. If an employee is conducting private business during work hours, there is a valid argument as to why the employee’s movements are relevant to the employer’s business and monitoring such movements does not invade the employee’s privacy.