Thu, 08/30/2012 - 4:14pm -- admin

Can an employer use GPS to track employees without their knowledge?

In short, this area of law is still developing.

Generally an employer can track the employer's vehicles used by employees without the employee's knowledge. The Washington Jornal of Law, Technology & Arts provided a nice summary of the law last year in an article on the topic:
Recent judicial decisions have found an employer’s interest in employer-owned property generally trumps employee privacy interests regarding location surveillance. Employees seeking to limit employers’ use of GPS have brought various causes of action including alleged violations of state constitutional, statutory, and common law rights to privacy, and claims of federal discrimination. Although no employee challenging an employer’s use of GPS has been successful in litigation, the increased use of GPS in the employment setting is likely to lead to disagreements about the privacy of employees. Additional states may begin regulating the use of GPS as these devices become more popular as a business tool to gather information about employees’ movement. Because there is currently no direct federal regulation of GPS surveillance, employers should carefully plan implementation of GPS, should they choose to use it, according to the legal requirements in the states where they operate.
In April of 2011, the North Caroline Bar Association published a great article which addresses this legal issue:
Some states have addressed this issue head on. For example, it is a misdemeanor in California to track any person’s location with an electronic device without that person’s consent. Cal. Penal Code § 637.7. Employers in California would be well-advised to obtain consent in writing. Connecticut has enacted a statute specifically addressing the employment context, making it illegal to monitor employees electronically without providing them with prior notice. Conn. Gen. Stat. § 31-48d. Connecticut’s courts, however, have limited employees’ rights significantly under that statute, holding that employees do not have a private right of action for an employer’s violation. Employees in other states have also challenged employers’ use of GPS technology to track their whereabouts, relying frequently on privacy-based tort actions such as unreasonable intrusion and invasion of privacy. Such actions, however, have not been very successful. For example, in Elgin v. St. Louis Coca-Cola Bottling Co., 2005 WL 2050633 (E.D. Mo. Nov. 14, 2005), an employee sued his employer for intrusion upon seclusion after learning that a GPS device had been installed in the employee’s vehicle without his consent or knowledge. Nevertheless, the court found only a limited invasion of the employee’s privacy, as the GPS tracking “revealed no more than highly public information as to the [vehicle’s] location.” Id. at *4. Interestingly, the court’s holding in Elgin tracks very closely with jurisprudence related to the Fourth Amendment’s prohibition against unreasonable searches and seizures. Courts have analyzed the use of GPS devices and similar technology in criminal cases and generally held that they do not violate an individual’s reasonable expectation of privacy. See, e.g., United States v. Knotts, 460 U.S. 276 (1983) (upholding police use of a primitive “beeper” tracking device); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) (upholding police use of GPS device in criminal investigation). But see United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc) (decrying the state’s use of GPS surveillance and concluding, “1984 may have come a bit later than predicted, but it’s here at last.”). In cases evaluating the use of GPS technology in the employment context, courts have used the same reasonableness standard in determining the proper scope of the technology’s use in the workplace. See, e.g., Elgin, 2005 WL 2050633, at *3.
Here is an interesting blog post on the topic if you would like further reading: Employer Monitoring Employees with GPS Tracking.