Published in Business NH Magazine - January 2013
Employers routinely provide their employees with smartphones, laptops, or company cars to conduct company business. To improve efficiency and to confirm employees are performing work-related activities using such company property, employers are increasingly looking to some level of monitoring of employee activity. Employers considering the use of a Global Positioning System (GPS) to track employees should heed the US Supreme Court's decision in U.S. v. Jones issued earlier this year, which held law enforcement must obtain a search warrant to track a suspect's vehicle using electronic technology. While the Jones case did not address directly an employer's monitoring of employees, it offered some guidance that private employers should consider before delving into these waters.
In Jones, the FBI and District of Columbia Metropolitan Police Department task force suspected the defendant of drug trafficking. The Government conducted visual surveillance of Jones and obtained a court warrant to put a GPS tracking device on his car. The warrant authorized the attachment of the device in the District of Columbia within ten days. The Government did not install the GPS tracking device until the eleventh day and it did so in Maryland. Jones' vehicle was tracked for twenty-eight days, collecting over 2,000 pages of data during this surveillance.
The Government later indicted Jones for possession of and conspiracy to distribute cocaine by using information obtained through the GPS tracking device. Prior to trial, the defendant moved to suppress the GPS evidence. The trial court kept out the evidence obtained during the times the vehicle was parked in the garage adjoining Jones' property. The trial court allowed all other GPS data, finding that a person who traveled in a car on public streets has no reasonable expectation of privacy for those movements.
The Court of Appeals reversed Jones' conviction. Upholding the reversal, the United States Supreme Court held that evidence obtained by the warrantless use of a GPS device was inadmissible in the criminal trial because it amounted to an illegal search prohibited under the Fourth Amendment to the United States Constitution.
The Jones decision, although a criminal case, provides some direction for private employers who seek to monitor employees through GPS or similar devices. It also shows the high court continuing to grapple with privacy issues and evolving technology. Two years earlier, the Supreme Court in City of Ontario, California v. Quon considered whether a public employer had violated an employee's Fourth Amendment rights when it obtained and reviewed text messages sent and received on employer-owned and issued pagers. It held the search was reasonable and not a violation of the employee's Fourth Amendment rights because the search was motivated by a legitimate work-related purpose, was limited in scope, and had been communicated as part of the employer's policy.
While businesses can track the location of their company property, GPS monitoring of employee activity raises important legal concerns. The New Hampshire Constitution contains a right to privacy that applies to the private sector that should be considered. There are also federal and state laws on monitoring electronic devices, including the Electronic Communications Privacy Act and the Stored Communications Act. Some states have passed laws specific on GPS tracking. In New Hampshire, HB 445, which would prohibit an employer from using electronic devices to track employees without consent of the employee or a court order, was referred to an interim study committee earlier this year, who, on October 10, 2012 recommended it for legislation in 2013 by a vote of 12 to 0.
In considering a policy on GPS tracking, employers should identify the legitimate business interests and benefits of such monitoring. For example, employers may use GPS to improve efficiency of shipping or driving routes by monitoring driving times, to ensure employees are where they are supposed to be, and to confirm employees are driving safely. Tracking can also help determine if employees are adhering to policies and not using company vehicles outside of work activities.
Employers should already have in place an electronic systems policy that notifies employees that the company's electronic systems and devices are subject to monitoring and inspection by the company at any time and that there is no expectation of privacy. To protect against lawsuits, employers who anticipate using GPS to track employees should update their policy to include notification of GPS tracking. The policy should also require a written acknowledgment by the employee consenting to and understanding that the company property they are using will be monitored by GPS. As with any policy, the employer should enforce it consistently with all employees.
While GPS monitoring can be a useful tool for employers, it can have an impact on employee morale which employers should consider. Concerns also arise with constant tracking of employee activity or tracking of employees during non-working hours. For example, an employee may be on personal time but have the company cellphone in the employee's pocket& such that the employer would be collecting private data on the employee's whereabouts --tracking an employee to a religious activity or to a gay or union rally. As noted in a concurring opinion in Jones, "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." Employers must be careful not to obtain such personal information and only use information gathered for proper purposes.
Companies choosing to use a GPS type tracking device to monitor employees, at a minimum, should have a clear policy so that employees are aware their whereabouts may be tracked. Court decisions suggest the best practice is for employers to strike a balance between the company's business interests and preserving some level of employee privacy. As this is a developing area of the law, employers should consult with legal counsel.
Jennifer Parent is a Director in the Litigation Department of McLane, Graf, Raulerson & Middleton, Professional Association.