GPS Tracking and the Fourth Amendment

Some employers are turning to global positioning system (GPS) tracking to monitor employees who drive as a primary function of their work duties. Employers cite many reasons for doing this, and of course, one is to see if the work is being done. So far, few legislatures have tackled this issue and there are limited, if any, statutes that restrict this employer practice. For private employers, then, this issue may present little-to-no concern.

Life in the public sector is a bit different. Being a subdivision of state government means state action, so constitutional protections exist for your employees. The question is, “What protections are those?” To reveal an answer, we must go back to 2010’s Supreme Court case on the issue: City of Ontario, Cal. v. Jeff Quon, et al. (2010).  Unfortunately, it’s not terribly helpful. The Court avoided deciding whether public employees have a reasonable expectation of privacy in text messages sent on employer-owned equipment under the Fourth Amendment and what particular standard ought to apply in making that determination. The Justices were concerned that rapid changes in communications and how information is transmitted made it too challenging to set legal standards for the workplace that would survive the test of time.

So, when it comes to GPS tracking, how should a public sector employer proceed? There is a case out of New York holding it was not allowed; i.e., Cunningham v. New York State Dep’t of Labor (N.Y. App. Div. 2013). In this case, a state employee was tracked via GPS because the government employer was investigating the employee for unauthorized absences and falsification of records. Without the employee’s knowledge, the state attached a GPS device to the employee’s personal car, and for a month it recorded all of the employee’s movements during daytime, evenings, weekends, and even when the employee was on vacation. The court found that the employee had a reasonable expectation of privacy during his off-the-clock time.  Also, the search was not reasonable because its scope was much broader than necessary to establish misconduct; i.e., tracking was not limited to time periods during which abuse was suspected or could potentially occur.

While we don’t yet have a final answer from the U.S. Supreme Court, we can use the New York case as guidance for interim “best practices.” It seems that employers could easily fix the defects in the New York employer’s tracking methods in 3 ways:

  • Only put GPS tracking on government owned vehicles;
  • Inform employees in advance that if they use the vehicles they are subject to GPS tracking; and
  • Only track the employees during work hours.

GPS continues to be a sensitive issue for employees, and no doubt there will be a Supreme Court case on the topic in the near future. In the meantime, if you have questions about this issue in your city, town, county, or special district please give us a call. We can help.