By Jessica Webb-Ayer, J.D., BLR Attorney Editor
Cases involving privacy rights and vehicle monitoring devices (namely, global positioning system (GPS) devices) seem to be making their way into court more frequently. In fact, two high-profile cases have recently been in the news: an employment law case involving a New York state employee and a criminal case that made it all the way to the U.S. Supreme Court.

Electronic monitoring is a big issue for employers, and it only continues to become more important as technology progresses and employers become more dependent on it. So what happened in the recent court cases, and what do they mean for employers?

Vehicle Monitoring Devices: New York Employment Case

In Cunningham v. New York State Department of Labor, a New York appellate court had to determine whether an employer’s use of GPS devices to monitor an employee’s whereabouts was reasonable. In this case, the employer, the New York State Department of Labor (NYDOL), suspected that one of its employees was falsifying time records and taking unauthorized absences from work.

The NYDOL unsuccessfully tried to have an investigator tail the employee and eventually referred the issue to the Office of the Inspector General (OIG). The OIG placed vehicle monitoring devices (in this case GPS devices) on the employee’s vehicle and used the data from the GPS devices as evidence in a report that concluded the employee engaged in a pattern of submitting fraudulent time records.

The employee objected to the use of the GPS data and filed suit. The New York court that heard the case held 3-2 that the NYDOL’s use of the GPS devices was not unreasonable given the situation.

The majority opinion noted several factors that it took into account when reaching its decision, including the fact that traditional methods of obtaining evidence (e.g., tailing the employee) had failed, the employee couldn’t have been surprised that he was being investigated given his ongoing problems at work, the GPS devices were not constantly monitored, and it didn’t appear that the GPS devices that were used had constant-monitoring capability.

The dissent disagreed, asserting that the GPS evidence was obtained by an unconstitutional search because although the search was reasonable at its inception, the search was not reasonable in scope. The dissent noted that even though the NYDOL was only interested in the employee’s location during the workday, the GPS devices tracked the employee’s vehicle 24 hours a day for a month and even tracked the employee’s activity during a week-long family vacation.

Vehicle Monitoring Devices: U.S. Supreme Court Criminal Case

In U.S. v. Jones, the U.S. Supreme Court had to decide whether the government’s monitoring of a GPS device attached to an individual’s vehicle constituted a search or seizure under the Fourth Amendment. The Court unanimously held that it was search. The majority opinion noted that the government “physically occupied private property for the purpose of obtaining information,” but it also stated that the case didn’t require the Court to determine whether electronic monitoring, without an accompanying trespass, is an unconstitutional invasion of privacy.

The justices also suggested that future guidance may be necessary to deal with electronic monitoring and other technology. Justice Sonia Sotomayor noted in her concurring opinion that the majority opinion may not provide much guidance in cases in which electronic or other novel modes of surveillance that do not depend on physical invasions of property are used.

Additionally, in his concurring opinion, Justice Samuel Alito stated that “concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions.” Alito also later noted that legislation is often the best solution to privacy concerns when there is “dramatic technological change.”

Employer Takeaways

There is not a lot of legislation that specifically addresses the use of GPS or other vehicle monitoring devices to track individuals. However, because of the above cases, employers should expect to see an increase in such legislation. It’s also important that employers understand that electronic monitoring opens the door for legal risks, and that they must balance employees’ privacy rights with the value of using such monitoring as an investigative tool. Therefore, until this area of law is more established, employers should be cautious when using monitoring devices and consult with legal counsel before utilizing them.

Electronic Monitoring Resources

• Topic Analysis: Electronic Monitoring
• Topic Analysis: Privacy
• Mastering HR: Privacy
• HR Guide to Employment Law: A Practical Compliance Reference
• Was GPS Tracking of NY State Employee Legal?
• Finding Balance: Employee Privacy vs. Employer Risk

Jessica Webb-Ayer, J.D., is an attorney editor for BLR’s human resources and employment law publications. She has written and edited countless publications on labor and employment law and is the editor of the Benefits Compliance Advisor online newsletter and the benefits manual, Benefits Compliance: Strategies for Plans, Programs & Policies. Ms. Webb-Ayer has also worked on various Americans with Disabilities Act (ADA) and workers’ compensation/safety products. She graduated summa cum laude with a B.A. in Psychology from Lipscomb University in Nashville, Tennessee, and graduated cum laude with a law degree from the University of Tennessee College of Law in Knoxville, Tennessee. Ms. Webb-Ayer is licensed to practice law in Tennessee.