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The decision also is important for private employers because five justices — Justice Alito (joined in his concurrence by Justices Ginsberg, Breyer, and Kagan) as well as Justice Sotomayor — rejected the majority position in the state and federal judiciary on the privacy of location data. Under that view, location tracking does not infringe any privacy interest because the location of a vehicle or a person in a public place is fundamentally not private. This majority view effectively leaves private employees without any remedy for an employer’s use of location tracking because a common law invasion of privacy claim can be asserted only for the breach of a recognized privacy interest, and a statutory remedy for unauthorized location tracking is rarely available.

In rejecting the majority view, the five justices found a protected privacy interest in the patterns of private activity that can be derived from continuous location tracking notwithstanding the public nature of any particular data point. In the words of Justice Sotomayor, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” This view likely will have a significant influence on the thinking of trial and appellate court judges when confronted with an invasion of privacy claim based on an employer’s unauthorized tracking of an employee during non-working hours. An employer might be tempted to engage in such tracking, for example, to check for abuse of paid or unpaid leave or to investigate suspected moonlighting or a potentially fraudulent workers’ compensation claim.

Consequently, the most important lesson for private employers to draw from the Court’s decision is the importance of limiting location tracking to working hours when the pattern of location data should not reveal details of an employee’s private life, and if it does, the employer has a legitimate business reason for knowing what the employee is doing other than earning his or her compensation. The New York appellate decision that we covered in last week’s blog post illustrates the point. In that case, the majority did not take issue with the New York State Department of Labor’s 24/7 tracking of a high-level employee’s personal vehicle because the employer had a reasonable suspicion that the employee was not working when he said that he was. Under that reasoning, tracking an employee during working hours clearly would be permissible. On the other hand, the dissenting judges in the New York case found that tracking the employee during non-working hours was excessively intrusive, particularly because the GPS device reported the employee’s location during a week-long family vacation.

Employers should note that many GPS devices are either on at all times or off. In these circumstances, employers should develop controls that will limit access to location tracking information to employees’ scheduled working hours.

Finally, private employers should note Justice Scalia’s reliance on the notion of trespass in finding that the government’s warrantless installation of the GPS device on Jones’s wife’s Jeep violated the Fourth Amendment. Similarly, an employer’s unauthorized placement of a GPS device on an employee’s personal vehicle might support a claim based on a common law trespass theory. As a result, employers should be particularly cautious when using any form of location tracking not associated with company-owned equipment.
 

Although the employee was a public employee, his case has relevance for private employers for the following reason. On appeal, the employee contended that the Labor Department could not lawfully rely on the location-tracking data to discipline him, invoking the exclusionary rule in New York’s civil service law. Under that rule, the hearing officer and the appellate court had to determine whether the Inspector General’s use of surreptitious location tracking was reasonable at inception and in its scope. That standard is similar to (albeit somewhat lower than) the standard that a court would apply to determine whether a private employer’s use of GPS to track an employee constituted a common law invasion of privacy. Given that no state other than California has enacted a law that prohibits a private employer from tracking an employee’s personal vehicle, a private employee terminated based on location information most likely would rely on a common law invasion of privacy claim to obtain a remedy.

The appellate court’s split decision on the reasonableness of the Inspector General’s use of location tracking highlights the difficult balancing that private employers must conduct when considering whether to use GPS as an investigative tool. All five judges agreed that use of the GPS was reasonable at inception because the Labor Department had a reasonable suspicion of the employee’s wrongdoing. The three-judge majority further concluded that 24/7 location tracking for one month was reasonable because the employee had intentionally undermined less intrusive investigative methods and because “the GPS devices were not constantly monitored;” instead, the Inspector General extracted only location information revealing the employee’s whereabouts during working hours. Rejecting this reason, the two dissenters emphasized that the Labor Department’s “valid interest in [the employee’s] whereabouts extended only to the hours of his workday and yet the tracking had continued for one month.” The dissenters found it particularly troubling that the Inspector General had tracked the employee’s location during a week-long family vacation.

The reasoning on both sides of the decision provides useful guidance for private employers seeking to use location tracking as an investigative tool. At least until the courts provide more guidance, it would be prudent for employers to use surreptitious location tracking only when other, less intrusive methods would be unsuccessful. In addition, where technically feasible, location tracking should be limited to working hours. When not technically feasible, employers should access only location data recorded during working hours.

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The European guidance is especially noteworthy for multi-national employers. Although this guidance, as its title suggests, deals almost exclusively with tracking consumers, the guidance contains a short section—which received scant public attention—that squarely addresses tracking employees. The guidance explains that it is unlawful for employers in the E.U. to track their employees unless “it is demonstrably necessary to supervise the exact locations of employees for a legitimate [business] purpose.” Even then, continuous monitoring generally is impermissible, and employees must be able to turn off location tracking during non-work hours. The guidance also discourages employers from using vehicle tracking devices to monitor the behavior of employees by, for example, recording the vehicle’s speed. Given this guidance, multinational employers should closely scrutinize the nature and scope of any location-tracking program before implementing it in the European Union.

The U.S. Supreme Court’s decision next term in U.S. v. Maynard also could have an impact on U.S. employers. As we explained in our blog post on the D.C. Circuit’s decision that is subject to Supreme Court review, a ruling that law enforcement’s 24/7 use of surreptitious location tracking violates the Fourth Amendment arguably could be used to support a claim against employers that engage in 24/7 location tracking without notice to employees. The rationale for such a decision likely would be that continuous tracking establishes a pattern of activity over a period of time which reveals private information about the target of the tracking, such as whether the person is a recovering alcoholic as reflected by regular visits to Alcoholics Anonymous meetings, is considering pregnancy as suggested by weekly trips to a fertility clinic, or is having an extra-marital affair. Despite the distinctions between Fourth Amendment standards and the elements of the common law tort of invasion of privacy, this rationale likely would apply with equal force in the common law context.

Finally, while the Congressional activity to date has focused on consumer privacy, it would not require a substantial leap in legislative drafting to extend the coverage of these bills to location tracking of employees. Alternatively, state legislators, taking the cue from Congress, might implement state-specific requirements, which could result in an unwanted patchwork of requirements for multi-state employers.

While U.S. employers currently are subject to virtually no regulation when tracking employees, the keen focus on the issue in Europe, in the criminal context, and in the consumer sphere very well may spill over to the U.S. workplace. Employers that use, or that are considering using, location tracking in their workplaces should continue to monitor these developments closely.

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Based on this distinction between pervasive and non-pervasive tracking, the court concluded that a “reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ‘disconnected and anonymous.’”

While the court’s decision construes only Fourth Amendment protections against government intrusions, the court’s observations clearly could be used to support a common law claim for invasion of privacy against an employer that uses GPS-enabled vehicles, laptops or smartphones to engage in surreptitious, 24/7 location tracking of its employees. That being said, the D.C. Circuit’s decision splits from the rulings of three other circuits — the Seventh, Eighth, and Ninth, making it likely that the D.C. Circuit’s decision will be subject to U.S. Supreme Court review. These other courts held that the warrantless use of a location-tracing device does not violate the Fourth Amendment because a criminal suspect cannot reasonably suspect privacy in his public movements. These cases, therefore, can be used to defeat an invasion-of-privacy claim based on an employer's use of pervasive location tracking.

Nonetheless, the D.C. Circuit’s decision highlights several steps employers can take to reduce the risk of privacy-based claims arising from location tracking: location-tracking in a manner that would make an invasion of privacy claim far less likely:

• Avoid surreptitious location tracking
• Provide employees with detailed, written notice of any location tracking
• When practical, have employees acknowledge receipt of the notice
• Limit location-tracking, when technically feasible, to working hours
• Restrict access to location-tracking information to those with a need to know

This entry was written by Philip L. Gordon.

Photo credit: Paul Downey

While the court’s decision addressed location tracking by law enforcement, the case is significant for private employers. An employee arguably could rely upon the New York decision to allege a common law claim for intrusion upon seclusion when an employer engages in surreptitious and pervasive location tracking. To reduce the risk of such a claim and to maintain good employee relations, employers should consider taking the following steps:

• Avoid surreptitious location tracking
• Provide employees with detailed, written notice of location tracking
• Have employees acknowledge receipt of the notice
• Avoid 24/7 location tracking
• Limit tracking, when technically feasible, to business hours

The more challenging question for employers is when, if ever, should an employer offer microchipping as part of a purely voluntary program.  Before answering that question, it is important to understand that the chip itself contains no personal information.  Instead, the chip contains an encrypted identification number which is linked to a database, such as medical records stored at a hospital or for a health care provider.  A signal emitted by the device transmits the number which then is used to access information corresponding to the person in whom the chip has been implanted.

Employees who might consider, and benefit from, voluntary implantation include:

• Employees with a medical condition, such as epilepsy or diabetes, that could render them unconscious and in need of emergency medical attention;
• Employees who are at a heightened risk of significant memory loss, such as those with Alzheimer’s disease, who might wander off-site;
• Employees, such as commercial pilots, miners and oil rig workers, at a heightened risk of a serious injury that could render them unconscious;
• Employees who need access to highly secured areas of a facility (albeit only as a voluntary alternative to some other form of identification; and
• Employees who travel to parts of the world where there is a high risk of being kidnapped and who prefer not to carry badges that reveal corporate affiliation.

Employers and employees may be surprised that there actually are some potentially beneficial and sensible uses of microchipping.  Microchipping highlights the need for  employers and employees to get past the initial, knee-jerk reaction against workplace technologies that can be invasive of privacy, such as Global Position Systems (GPS) and camera phones.  Rather, employers should focus on implementing such technology within the framework of policies and procedures that minimize or eliminate unnecessary intrusions while reaping the technology’s benefits.