A traveling carpenter for the New York City school system thought no one would notice he left work early, so he did this at least 83 times over five months. What the 21-year city employee did not know was that his Department of Education-issued cell phone allowed his employer to track his whereabouts around the clock. Not only did the global positioning system (“GPS”) in the phone display the time he began his drive home and when he arrived at home, it showed his chosen routes. The employee was fired for submitting time cards to get paid for full shifts when the GPS device in his cell phone showed he had worked many less hours than he reported.

This termination has captured the attention of privacy advocates and newspaper reporters in a way that the usual theft of time discharge does not. This scenario is likely to become much more common as the cost of GPS technology decreases and the use of GPS devices to monitor employees increases, especially to track employees, like salespersons, whose work takes them away from their employer’s premises. Employers need to be aware of the potential risks of using this technology to track employees because the law in this area is very undeveloped.

What Is GPS?

GPS relies on satellites that orbit the earth and transmit signals to receivers on the ground which, whether handheld or installed in a car or cell phone, are able to determine their latitude and longitude. GPS can also provide for in-vehicle navigation and the tracking of automobiles. A GPS receiver can relay data to a computer, such as that of an employer, that displays the receiver’s location. When mobile, a GPS receiver can also calculate a vehicle’s speed and direction of travel.

Companies are marketing GPS services to employers. For example, Sprint offers a service on some of its cell phones called Mobile Locator which it advertises as “a web-based application used to locate handsets used by field employees.” This allows “company managers and dispatchers [to] easily view the location of their field employees using an advanced map display” on a personal computer. FleetBoss Global Position Solutions, similarly, offers a device that is installed in vehicles and provides tracking and location data of those vehicles. Supervisors can access this data on computers, along with summary reports recording a vehicle’s movement history.

Potential Risks In Monitoring Employees With GPS

Because employer use of GPS devices to track employees is relatively new, there are no federal or state statutes expressly prohibiting employer use of GPS. Employees, however, may turn to state privacy statutes, common law tort principles or even work actions to try to thwart employer monitoring with GPS.

State Privacy Statutes

State privacy protections vary greatly. In Massachusetts, for example, by statute all people “have a right against unreasonable, substantial or serious interference with [their] privacy.” Massachusetts courts weigh the employer’s legitimate business interest in obtaining information against the substantiality of the intrusion on the employee’s privacy. Therefore, employers must tailor the scope of any employee surveillance to the business interest being asserted.

Other states prohibit employers from taking adverse actions based on an employee’s after-work activities. For example, in New York, employers are prohibited, with certain exceptions, from refusing to employ, discharging, or discriminating against an employee based on an employee’s legal recreational activities “outside work hours, off the employer’s premises and without the use of the employer’s equipment or other property.”

In Connecticut, which directly regulates electronic monitoring by employers, a statute requires that every “employer who engages in any type of electronic monitoring shall give prior written notice to all employees who may be affected, informing them of the types of monitoring which may occur.” Because the language of this statute is so broad, the statute could conceivably regulate GPS tracking of employees who use company cars or who regularly work at clients’ offices or other offsite locations.

Common Law Tort Principles

Employers who use GPS monitoring may also face claims from their employees under two common law theories: unreasonable intrusion on the right of seclusion and publicity given to a private life.

Generally, unreasonable intrusion on the right of seclusion is defined as (1) an intentional invasion or intrusion; (2) that is highly offensive to a reasonable person; and, (3) occurring where there is a reasonable expectation of privacy. If an employer notifies employees that a GPS device may monitor movement of employees at all times, it is likely to make it more difficult for an employee to satisfy a court that there was a reasonable expectation of privacy while carrying a GPS device.

To state a claim for publicity given to a private life, a plaintiff must usually show that a person gave publicity to a matter concerning the private life of another, and the matter publicized is highly offensive to a reasonable person and is not of legitimate concern to the public. The conduct is typically not actionable, however, where a fact concerning a person’s private life is communicated to a single person or small group of persons. Consequently, an employer that is careful to limit disclosure of GPS tracking information to a small group of supervisors, with a need-to-know, could probably limit its exposure to such claims.

Employee Resistance

GPS tracking has triggered vehement opposition among some employees. New York City taxi driver union members “walked off” the job for two days in September and one day in October of 2007 to protest new City Taxi And Limousine Commission (“TLC”) regulations requiring the installation of GPS devices in taxis. The TLC argues that GPS technology benefits cab drivers by reducing paperwork and allowing drivers to receive text messages. Cab drivers argue that GPS is an invasion of privacy, and costs will reduce their take-home pay. Despite the strike, the TLC made no changes to the GPS regulations. Following the September strike, the union filed a class action suit seeking to enjoin the TLC from enforcing the new regulations, obtain compensatory damages to cover the costs of installing the GPS systems, and recover punitive damages. On September 28, the court denied the plaintiffs’ request for a preliminary injunction but allowed the suit to go forward, setting a February 15, 2008, deadline for the completion of discovery.

Conclusion

The law in the United States regarding employer use of GPS devices to track employees is in its infancy. Certainly, courts will be asked by plaintiffs to extend common law tort principles to award damages based on the use or misuse of information obtained from GPS monitoring of employees. To minimize the legal risks associated with implementing a GPS tracking program, there are a number of steps an employer can take.

First, employers should obtain written authorization from their employees to install and use GPS devices. Second, employers should give employees notice of how the GPS devices will be used, including the circumstances in which they would be monitored outside of business hours, the purpose of such monitoring, and the extent to which information from monitoring could be disclosed. Third, employers should limit access to GPS tracking information to those who have a clear business need-to-know. Fourth, employers should carefully weigh the risks of GPS monitoring of off-duty activities against the business need for the information and be attentive to statutory limits on using this information to punish off-duty conduct. Although it is impossible to predict what legislators and courts will do in response to the growing use of, and opposition to, GPS monitoring of employees, these steps can be implemented as part of any GPS-tracking program to effectively manage the risks associated with such use.

A version of this byliner ran in the October 2007 issue of Mealey’s Litigation Report.