Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

By Philip L. Gordon

The Supreme Court ruled unanimously yesterday that law enforcement must obtain a search warrant before placing a Global Positioning System (GPS) device on a suspect’s vehicle for purposes of tracking the vehicle’s location. The decision effectively overturned Antoine Jones’s life sentence for drug trafficking which was obtained, in part, through the use of location tracking information generated by a GPS device secretly placed by the FBI, without a search warrant, on Jones’s wife’s Jeep Grand Cherokee. Although the Court’s analysis focuses exclusively on the Fourth Amendment to the U.S. Constitution, which applies only to government actors, the decision has potentially important implications for private employers who are turning increasingly to location-tracking capabilities in vehicles, smartphones, and even laptops to track employees for management and investigative purposes.

To begin with, the Court’s decision highlights the dearth of legislation in the area. None of the Court’s three opinions — the lead opinion by Justice Scalia, a concurrence in that opinion by Justice Sotomayor, and an opinion by Justice Alito concurring in the result but not with Justice Scalia’s reasoning — cited a single federal or state law which regulates location tracking. California’s statute prohibiting the installation of a tracking device on a vehicle without the consent of the vehicle’s owner or lessor appears to be only one of two laws (the other is Texas) on the subject with a significant impact on private employers. In the wake of the Supreme Court’s decision, employers should expect legislative activity in the area.

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By Philip L. Gordon

A recent decision by a New York appellate court is one of the first cases to address the surreptitious use of location tracking for employment purposes. The 3-2 split decision highlights the on-going disagreement among judges over the lawful use of Global Positioning Systems (GPS). The New York case is particularly noteworthy because the U.S. Supreme Court in U.S. v. Jones (argued November 7, 2011)  (Note: the lower court case is U.S. v. Maynard, on cert to the U.S. Supreme Court the case is U.S. v. Jones, referring to respondent Antoine Jones) is currently considering virtually the same issue addressed by the New York court, but in the criminal context. Given the increasing use of GPS in the workplace, employers need to understand the legal risks associated with this highly effective management and investigative tool.

The subject of the New York case was a 30-year employee of New York’s Department of Labor, serving most of that time as the Department’s Director of Staff and Organizational Development. Despite his high-level position, he had been a “problem employee” for nearly a decade, having been disciplined on several occasions. The dispute that ultimately led to the appellate court decision had its inception in the Labor Department’s investigation of the employee for falsifying time records. The Department initially tried to track him the “old-fashioned way,” i.e., by tailing him, but the employee spotted and evaded the tail. The state’s Inspector General, to whom the Labor Department referred the investigation, then secretly planted a GPS device on the employee’s personal vehicle and collected location data 24/7 for a one-month period. Based, in part, on the location data collected, a Labor Department hearing officer recommended the employee’s termination for, among other things, falsifying time records.

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By Philip L. Gordon

Ever since revelations in May that smartphones track the location of their users, location privacy has been a red hot issue in virtually every forum — except the U.S. workplace. Just last week, for example, the U.S. Supreme Court agreed to review a federal circuit court decision (covered by our blog when decided last August), holding that the federal government’s warrantless use of 24/7 location tracking for more than a month violated the Fourth Amendment rights of a criminal suspect. The Wall Street Journal dubbed June 15, 2011, “location privacy day on Capitol Hill” after two bills were introduced to limit the use of location data by industry and by law enforcement. And, in the European Union, the Article 29 Working Party, which is responsible for providing guidance on the application of the European Union Data Protection Directive, recently published its “Opinion 13/2011 on Geolocation Services on smart mobile devices.” While none of these developments directly implicate the U.S. workplace, U.S. employers should closely monitor the location privacy debate, particularly given their increasingly common reliance on GPS-enabled smartphones and vehicles to track employees.

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