Recently, in U.S. v. Jones, the U.S. Supreme Court ruled that the Fourth Amendment (protecting a person’s reasonable expectation of privacy and against unreasonable search and seizure) was violated when law enforcement inserted a Global Positioning System (or GPS) device in a vehicle, without a valid warrant, and tracked the vehicle’s every move on public streets for a month. Although Jones is a criminal case involving the U.S. Constitution which prohibits unreasonable searches by government actors, the decision may have a ripple effect on private employers who use GPS and other tracking devices to monitor employees’ whereabouts.
Currently, only two states, California and Texas, have laws prohibiting use of GPS or similar devices in vehicles without the owner’s consent. There are also two recent federal bills pending which, if enacted, would likewise prohibit nonconsensual use of the devices in the private employment and other contexts. It can be expected that more states will follow lead and introduce similar legislation. In the meantime, the majority of states recognize a common law tort claim (a civil claim for damages) against an employer for breach of an employee’s right to privacy. Given the general lack of case law on tracking devices and privacy concerns, coupled with the strong, privacy protective message from the Supreme Court, it is likely that private sector employees will rely heavily on the Jones decision in making such tort claims and arguing that their employers violated privacy expectations in “unreasonable” tracking and monitoring scenarios.
In light of these considerations, private employers are cautioned to limit the use of tracking devices (whether in vehicles, smart phones, laptops, or other portable devices) to that which is reasonably necessary to satisfy the employer’s legitimate business needs. Legitimate business needs may include things such as investigation of misconduct, locating a stolen vehicle or lost driver, or verifying that a service call was made when a customer is denying it. Still, even where legitimate business needs reasons for tracking exist, certain precautions should be taken to reduce liability exposure for invasion of privacy claims.
First, employers should notify employees of the “who, what, when, where and why” of use of the tracking device through a written policy, and obtain the employee’s signature acknowledging receipt and review of the policy. Second, GPS and other tracking devices should only be used in company-owned vehicles or equipment. If the employee uses his/her own vehicle or equipment for business purposes during work hours, tracking should only be done with the employee’s consent and knowledge (and preferably only after the employee has refused to use the company vehicle or equipment that was offered to him/her). Third, with rare exception, employers should never track an employee’s whereabouts during non-work hours. A “rare” exception could be limited tracking to determine whether an employee is driving a company vehicle for personal reasons after work against known company policy, or to find out whether an employee is actually working after hours as he/she is claiming on his time card. Even these limited exceptions should only be used when the employer has received other reliable information that the employee is engaging in the alleged wrongdoing.
Following these guidelines may help reduce liability exposure for invasion of privacy claims, and, in any event, are simply “best practices” from an employee relations standpoint.