Can Employers Lawfully Use GPS To Track Their Employees?

Employees who travel as part of their job probably think they have more freedom than most other workers. While this may be true, employees should be forewarned: your employer could be keeping track of you with a GPS device.

The use of GPS is particularly prevalent in the transportation and delivery services industries. This is because GPS devices installed on company-owned vehicles can be helpful in checking the delivery status of a package or providing assistance when a vehicle breaks down. In these situations, the employee is probably aware that a GPS device has been attached to the vehicle and that his or her movements are being tracked.

But employers have now turned to using GPS to investigate alleged misconduct in the workplace. Is this legal? Or does it violate the employee’s right to privacy, possibly triggering an invasion of privacy claim?

This area of the law is relatively new, so the answers to these questions are not cut and dry. Only a handful of courts (Law360 subscription required) have addressed whether employers can legally use GPS to investigate suspected employee misconduct. In the few rulings that have been issued, the critical factor is whether the GPS device was installed on a company-owned vehicle or a personal vehicle.

Here are some of the cases that have discussed GPS tracking of employees.

• Elgin v. Coca-Cola Bottling Co — The employer attached a GPS device to a company-owned vehicle to investigate suspicions of theft. The employee was cleared of any wrongdoing, but filed a state-law intrusion claim. A Missouri federal court rejected the claim, noting the employer owned the vehicle and the only information revealed was the whereabouts of the vehicle.

• Tubbs v. Wynne Transport — The employer had collected information on a truck driver through a GPS device installed on a company-owned truck. Although a Texas court dismissed the truck driver’s invasion of privacy claim, the court did not offer any substantive analysis regarding the use of the GPS device.

• Cunningham v. New York Department of Labor — The employer had a GPS device installed on the personal vehicle of a state employee, who was suspected of misconduct, to gather information on his whereabouts. The employee was eventually fired. The employee then filed a lawsuit, claiming the GPS device violated his right to privacy. A New York court held the attachment of the GPS device to the employee’s personal vehicle was an unreasonable search and contrary to constitutional principles. The search was unreasonable in its scope, the court said, because the employee’s personal vehicle was monitored 24 hours a day, seven days a week, and the GPS was not removed prior to the employee taking a vacation.

Other cases, however, show that the extent to which a personal vehicle is used for work purposes can alter the invasion of privacy analysis.

In two decisions involving taxi drivers who personally owned their cabs, a New York City court ruled the drivers had no expectation of privacy in data gathered from GPS devices installed on their vehicles. The city had a legitimate interest in determining whether the drivers were overcharging passengers, the court said, and information was only obtained during work hours.

Based on these rulings, employees should be aware that:

• An employer is on solid footing when attaching a GPS device to a company-owned vehicle and using data gathered while investigating misconduct, especially if the employee knows the device is on the vehicle and the information is only being gathered during work hours.
• A GPS device installed on an employee’s personal vehicle used by the employee for work purposes may be an invasion of privacy, particularly if the GPS data collection was not limited to work hours.

As technology continues to permeate the workplace, the privacy issues confronted by employees will become more complicated. We will continue to monitor developments in this area of the law.

If you believe your rights have been violated by means of GPS tracking, contact the Sommers Schwartz’s Employment Litigation Group today to explore your options.

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