Can I Track My Employees?
Global Positioning System (GPS) devices have become nearly ubiquitous, not only in our cars but also in our cell phones, our running wristwatches, our microchipped pets, and even our hiking daypacks. The devices are credited with the ability to save lives, particularly in the hands of emergency dispatch services. However, they can also create a host of knotty legal questions.
Some of those questions arise in the area of employment law. It is increasingly common for employers to install GPS devices on company-owned vehicles. The reasons for this vary widely, depending on the nature of the business. A plumbing repair company may seek to track multiple service vehicles, to determine which one is closest when a customer calls in with a new job. A taxicab company may seek to keep track of the location and mileage of its vehicles. A delivery company whose trucks travel long distances may wish to track its drivers’ locations as an extra measure to secure their safety.
The question is, what potential liabilities may arise from an employer’s decision to install these devices on its vehicles? As with nearly every legal question, the answer is, It depends.
Expectation of privacy
In January of this year, the United States Supreme Court decided United States v. Jones, holding that the Government’s attachment of a GPS monitor to a vehicle driven by a suspected drug trafficker constituted a “search” for purposes of the Fourth Amendment. Because there was no warrant for the GPS device, the Supreme Court found that Mr. Jones’s Fourth Amendment rights had been violated.
The Jones decision differs sharply from courts’ prior holdings on the subject of GPS tracking. A person driving a car down public roads is constantly conveying her position to anyone who happens to be watching those roads. Courts assumed, therefore, that the government was not conducting an illegal search if it monitored her position through use of a GPS device. The Supreme Court rejected that assumption, however, finding that the Government’s installation of a GPS device on Mr. Jones’s car constituted a trespassory search.1
The implications and relevance of Jones reach far beyond the criminal law arena. One point that is particularly salient for employers to remember: Mr. Jones, the criminal defendant who was convicted based on the information gathered by the GPS monitor, was not the owner of the car being monitored. That car belonged to his wife, but he was the primary driver. The Supreme Court nevertheless agreed with the Circuit Court’s finding that the question was Mr. Jones’s legitimate expectation of privacy, not his relationship to the registration of the car being monitored.
One key question for an employer, then, is whether his or her employees have a legitimate expectation of privacy in the movements of the company-owned vehicles that they drive. The answer to that question is going to vary from case to case. Is the vehicle kept on company property and driven only during the workday, or can the employee take it home and use it during evenings and weekends as well? Is it shared among several employees, or does one employee drive it exclusively? What policies are in place governing use of the vehicle, and what agreements or acknowledgements has the employee signed? All of these factors may weigh into a court’s consideration of whether an employee’s expectations were reasonable.
Even assuming an employee’s expectation of privacy was reasonable, what does the government’s monitoring of a suspected drug dealer have to do with an employer’s invasion of that privacy? That depends on who the employer is. Under 42 U.S.C. § 1983, the employee may have a cause of action for the employer’s deprivation of his Fourth Amendment right to be free of unlawful searches.
Consider a hypothetical full-time employee who works only three days in the office, and otherwise works outside of the office using a company-owned vehicle.2 That employee completes and submits his time sheets via a computerized system. After a time, the employee’s hypothetical employer becomes suspicious that the employee is not working the full days when he is not in the office. Unbeknownst to the employee, the employer places a GPS device on the vehicle he drives to monitor his activities. After a few weeks of monitoring, the employer determines that the employee has, in fact, been falsifying his time sheets, and fires him.
This hypothetical employer is liable under § 1983 only if it has acted “under color of State law.” If the employer is the government itself, the question is easy. Courts have held that the government is acting under the color of state law when it takes actions with respect to its employees.
That said, Government employers aren’t the only ones who should be concerned about possible liability under § 1983. Even a private actor can be subject to § 1983 liability where he or she has acted as an agent or instrument of the state. As a clear-cut example, suppose that the hypothetical employer attached the GPS monitor not to track the employee’s activities, but at the request of a police detective who is investigating the employee as a suspect in a murder investigation. The hypothetical employer would be far less likely, under those circumstances, to argue that he was not a state actor for purposes of the statute. Shades of gray are likely to exist outside of this extreme, however. An employer who suspects that his or her monitoring of an employee’s movements using a GPS device might have any government involvement should proceed very carefully – particularly because the employer may be found liable under § 1983 even if any governmental actors are immune from liability.
Other potential claims
Even if § 1983 does not apply, employers should be aware of potential liabilities arising from state tort claims which do not require state action. One example is the tort invasion of privacy. North Carolina recognizes the tort of invasion of privacy by intrusion upon seclusion, including in the context of an employer’s intrusion upon an employee’s seclusion or private affairs. Again, the pivotal issue is the expectation of privacy – the tort exists where the intrusion would be highly offensive to a reasonable person. If, in light of the Jones decision, an employee has a reasonable expectation of privacy in her use of a company-owned vehicle, it is distinctly possible that courts could hold that intrusion upon that privacy meets the definition necessary for an invasion of privacy tort claim.
The Jones decision is still a new one, and it could be some time before its full implications in employment law become apparent. However, employers who have installed, or wish to install, GPS devices on company-owned vehicles should proceed with caution. It is well worth consulting with an attorney to determine what potential claims could arise from the use of such devices, and what policies and procedures can be constructed to avoid liability from the employees subject to such monitoring.
1: The facts of this hypothetical are based on the recent decision in Brookshire v. Buncombe County, No. 10-cv-278, 2012 WL 136899 (W.D.N.C. Jan. 18, 2012).
2: In so finding, the Court distinguished cases where the defendants acquired a vehicle or container equipped with a monitoring device by the consent of a prior owner – in other words, where there was no trespass.