Location Surveillance by Gps: Balancing an Employer's Business Interest With Employee Privacy

• Citation: Vol. 6 No. 2
• Publication year: 2010

Washington Journal of Law, Technology and Arts Volume 6, Issue 2 Autumn 2010

Location Surveillance by GPS: Balancing an Employer's Business Interest with Employee Privacy

Kendra Rosenberg (fn*)

Abstract

Employers are increasingly using GPS tracking devices as business tools to monitor employee movements. Recent judicial decisions have found an employer's interest in using location surveillance on employer-owned property generally trumps an employee's privacy interests. However, employers deciding to use GPS should be aware of the potential limitations on tracking an employee based on state constitutional, statutory, and common law rights to privacy. This Article focuses on the permissible scope of an employer's use of GPS to track employees in the workplace.

Table of Contents

Introduction....................................................................................144

I. Location Surveillance in the Workplace.................................144

II. Violation of Privacy Claims.....................................................146

A. The History of GPS Litigation in the Criminal Context:

State and Federal Constitutional Protections..................146

B. Claimed Violations of State-Provided Rights to Privacy .........148

C. Common Law Torts of Unreasonable Intrusion and Invasion of Privacy............................................................150

III. Using GPS in the Workplace..................................................152

Conclusion......................................................................................153

Practice Pointers..............................................................................154

Introduction

Employers are beginning to use Global Positioning System ("GPS") navigation devices more frequently as a practical tool to monitor employees' locations. This increased use of GPS has, however, also increased tensions between employers and their employees, as employers' property rights clash with employees' rights to privacy.(fn1) This tension has come to a head in the form of lawsuits, such as the New York Taxi Workers Alliance's suit in 2007 to enjoin the city from requiring GPS installation in all licensed city cabs.(fn2)

Since no federal or state law currently restricts the use of GPS in employer-owned vehicles, many employees have sought legal recourse in constitutional and statutory privacy rights and common law protections. Although no lawsuit challenging an employer's use of GPS has been successful, this Article provides useful guidance about how employers may avoid such litigation. First, this Article discusses the current use of GPS technology in an effort to explore how this type of litigation arises. Next, this Article explores the different causes of action pursued by employees to date, including alleged violations of state constitutional, statutory and common law rights to privacy, and claims of federal discrimination. Finally, this Article offers practice pointers to employers seeking to use GPS technology in the workplace.

I. Location Surveillance in the Workplace GPS devices use a satellite-based electronic system that reveals the location of objects or individuals in real-time.(fn3) On a vehicle, GPS technology can be used to remotely monitor vehicle movements, speed, and precise location.(fn4) Location information is sent live through a receiver for real-time tracking updates or is stored in the GPS unit for later use and delivery to a server for monitoring.(fn5)

Many public entities have started using GPS in public employer-owned vehicles after citing the need to monitor the quality of performance and to increase employee efficiency.(fn6) For example, the city of Oakland, California installed GPS trackers on vehicles in response to complaints about unsatisfactory street sweeping.(fn7) Similarly, King County, Washington installed GPS equipment on solid waste trailers to maximize the efficient use of the equipment.(fn8) Public schools are also using GPS to track the location of school buses, citing the need to monitor bus drivers and bus routes, speeds, and idling times.(fn9)

Private employers also use GPS on employer-owned delivery vehicles to increase productivity, improve customer service, reduce labor costs, and promote responsible behavior among employees.(fn10) By using GPS, employers can receive real-time information about vehicle locations to help deal with customers' complaints and potentially lower costs by efficiently coordinating delivery fleets. Employees can use GPS to get directions and coordinate delivery routes according to the availability of vehicles and traffic patterns.

Employees bringing lawsuits against employers for using GPS in the workplace have sought recourse through both state and federal causes of action.(fn11) Recent judicial decisions suggest that claims by employees asserting state constitutional, statutory, and common law privacy violations are increasing. Because the use of GPS in the workplace has yet to be addressed in many jurisdictions, it is important for employers to consider potentially applicable federal and state laws that may regulate the location surveillance of individuals generally.

II. Violation of Privacy Claims

The privacy implications of GPS use frequently arise in litigation related to law enforcement using location tracking devices to monitor suspects. Courts considering an employer's use of GPS have repeatedly referred to...