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 “bring your own device” 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: 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.
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.
In Cunningham 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 overcharging 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 U.S. 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.