Every Move You Make: BalancingPrivacy Rights in the GPS Tracking of Sales and      y g                        gOther Emplo...
Presenters   Brian J. Moore, Esq         J Moore Esq.   Charleston ^ 304.357.3905   brian.moore@dinsmore.com   Ashley L. P...
We will be covering:-   The use of GPS systems to track employees-   GPS tracking laws as they relate to employers-   Pote...
A.A Background        © 2012 DINSMORE & SHOHL | LEGAL COUNSEL   | www.dinsmore.com
I. The Use of GPS Tracking Devices to          Track Employees                     © 2012 DINSMORE & SHOHL | LEGAL COUNSEL...
What is a “GPS?”- “Global Positioning System”   Global             System- System used to track physical location across t...
How does the GPS system work?- The GPS navigation system utilizes a system of  twenty-four (24) satellites orbiting the ea...
Global Positioning SystemsTypes of GPS Units include:  - Handheld/Portable Units  - Car GPS Units  - Laptop based units  -...
B.B GPS Employee Tracking: Why and How?                     © 2012 DINSMORE & SHOHL | LEGAL COUNSEL   | www.dinsmore.com
Why Track Employees?Increased Efficiency:5- Streamlined Travel- Real-time progress updatesCompliance with Governmental Reg...
Why Track Employees?Monitoring of Employees:7- Are company policies being followed?- Are timesheets accurate?- Are employe...
Common Monitoring Techniques- Employers have a number of different  techniques at their disposal when seeking to  track em...
II.II GPS Tracking La s                Laws             © 2012 DINSMORE & SHOHL | LEGAL COUNSEL   | www.dinsmore.com
Private Employers- While there is no federal statute that directly  regulates the use of GPS monitoring for private  emplo...
CaliforniaLaw: Cal. Penal Code § 637.7Contents:- Forbids the use of electronic tracking devices to  determine the location...
ConnecticutLaw: Conn. Gen.Stat. § 31-48dContents:- Requires Employers to give written notice of electronic monitoring to  ...
ConnecticutExceptions:- The use of electronic monitoring during criminal  investigations is also exempt         g         ...
DelawareLaw: Del. Code Ann tit. 11 §1335(a)(8)Contents:- “Invasion of Privacy”- Forbids the installation of electronic tra...
TexasLaw: Tex. Penal Code Ann. §16.06Contents:- Forbids the placement of “electronic or mechanical  tracking devices” on t...
III. Potential Pitfalls of GPS Employee Tracking                                 p y           g                          ...
Employee Privacy Concerns1. State Constitutions: Invasion of Privacy Claims                                          y    ...
State Tort Law2. State Tort Law: Invasion of Privacy Claims -   Where not expressly protected by a state   constitution, s...
Types of State Law Tort Claims                       11Unreasonable Intrusion:1.1 An intentional invasion2. Highly offensi...
Types of State Law Tort Claims Continued…Publicity Given to a Private Life:121.    Individual created publicity regarding ...
IV. CIV Current Trends in GPS T ki L           T d i         Tracking Laws                      © 2012 DINSMORE & SHOHL | ...
1. GPS Tracking in Criminal CasesU.S. v. Jones, 565 U. S. ____ (2012)             ,                 (    )Facts:  - Nightc...
2. GPS Tracking by Employers- Generally, courts have held that there is no  reasonable expectation of privacy in relation ...
GPS Tracking by Employers Continued…Elgin v. St. Louis Coca-Cola Bottling Co. 2005 U.S. Dist.   LEXIS 28976 (E D M 2005)  ...
GPS Tracking by Employers Continued…Willie Tubbs v. Wynne Transport Service, Inc., 2007 U.S.Dist. LEXIS                  y...
GPS Tracking by Employers Continued…- After U.S. v. Jones, Employer usage of GPS                       ,    p y       g  t...
V. Best Practices for GPS Tracking byEmployers: Five Tips to Avoid the Pitfalls of GPS                   Tracking         ...
1. Become Familiar with the Privacy Laws        That Aff t Y        Th t Affect Your Company                         C- So...
2. Give Notice of GPS Tracking to                 Employees                 E l- Create a GPS tracking p                  ...
3. Limit the Use of GPS Trackers to           Company-Owned P           C         O     d Property                        ...
4. Use GPS Tracking Sparingly- Only Monitor During Work Hours!- Only employ GPS monitoring where other  means of (legal) s...
5. Protect Information From Being                  Disclosed                  Di l    d- Become familiar with state and fe...
Sources:Works Cited:1.1    GPS Overview, Gps gov (April 12 2012) http://www gps gov/systems/gps/ (last visited           O...
Questions?  Brian J. Moore  Bi J M  (304) 357-9905  Brian.Moore@dinsmore.com  Ashley L. Pack  (304) 357-9937  Ashley.Pack@...
The End     © 2012 DINSMORE & SHOHL | LEGAL COUNSEL   | www.dinsmore.com
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Every Move You Make: Balancing Privacy Rights in the GPS Tracking of Sales and Other Employees

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Every Move You Make: Balancing Privacy Rights in the GPS Tracking of Sales and Other Employees

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Every Move You Make: Balancing Privacy Rights in the GPS Tracking of Sales and Other Employees

  1. 1. Every Move You Make: BalancingPrivacy Rights in the GPS Tracking of Sales and y g gOther EmployeesThe Law, Potential Issues, and Best Practices. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  2. 2. Presenters Brian J. Moore, Esq J Moore Esq. Charleston ^ 304.357.3905 brian.moore@dinsmore.com Ashley L. Pack, Esq. L Pack Esq Charleston ^ 304.357.3937 ashley.pack@dinsmore.com © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  3. 3. We will be covering:- The use of GPS systems to track employees- GPS tracking laws as they relate to employers- Potential pitfalls of using GPS to track employees- Current trends in GPS tracking Laws- Best practices for the implementation of GPS t ac g tracking by e p oye s employers © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  4. 4. A.A Background © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  5. 5. I. The Use of GPS Tracking Devices to Track Employees © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  6. 6. What is a “GPS?”- “Global Positioning System” Global System- System used to track physical location across the g globally. y- Originally created by the military, civilian use of the GPS began in the 1980’s.1 g © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  7. 7. How does the GPS system work?- The GPS navigation system utilizes a system of twenty-four (24) satellites orbiting the earth.2- The GPS satellites orbit the earth twice a day in regular patterns transmitting information back to the earth.3- The GPS satellites receive signals from the ground, triangulate the signal’s location, and then send the location information back to the receiver.4 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  8. 8. Global Positioning SystemsTypes of GPS Units include: - Handheld/Portable Units - Car GPS Units - Laptop based units - Cell phones - PDA units © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  9. 9. B.B GPS Employee Tracking: Why and How? © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  10. 10. Why Track Employees?Increased Efficiency:5- Streamlined Travel- Real-time progress updatesCompliance with Governmental Regulations:6- Are workers taking their required breaks?- Are overtime rules being followed? © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  11. 11. Why Track Employees?Monitoring of Employees:7- Are company policies being followed?- Are timesheets accurate?- Are employees safe?- Are other methods of monitoring being subverted? © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  12. 12. Common Monitoring Techniques- Employers have a number of different techniques at their disposal when seeking to track employees. These techniques include: - Placing GPS trackers inside of company-owned vehicles - I Issuing company-owned cell phones or other i d ll h th electronic devices with GPS tracking capabilities - Placing trackers on personally owned vehicles used in work related activities* © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  13. 13. II.II GPS Tracking La s Laws © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  14. 14. Private Employers- While there is no federal statute that directly regulates the use of GPS monitoring for private employees, a few states have adopted laws aimed directly at regulating the use of electronic tracking in general.7 l- These States include: California Connecticut Delaware Texas8 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  15. 15. CaliforniaLaw: Cal. Penal Code § 637.7Contents:- Forbids the use of electronic tracking devices to determine the location of other individualsExceptions:- Consent- Law enforcementPenalties:- Violation of Code Section is a Misdemeanor- Violations by business and corporations can result in a revocation of business license © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  16. 16. ConnecticutLaw: Conn. Gen.Stat. § 31-48dContents:- Requires Employers to give written notice of electronic monitoring to employees prior to the implementation of the monitoring.Exceptions:- Employers are exempt from the notice requirement when they fit two criteria: 1. An 1 A employer reasonably b li l bl believes th t an employee i that l is engaging in conduct that (i) violates the law (ii) violates the employer or the other employees of the employer’s legal rights or (iii) creates a hostile workplace AND 2. Electronic monitoring may produce evidence of one of the above beliefs. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  17. 17. ConnecticutExceptions:- The use of electronic monitoring during criminal investigations is also exempt g pPenalties:- Violation of 31-48(d) may result in a civil fine of 31 48(d) up to five hundred dollars for the first offense, one thousand dollars for the second offense and three thousand dollars for a third offense. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  18. 18. DelawareLaw: Del. Code Ann tit. 11 §1335(a)(8)Contents:- “Invasion of Privacy”- Forbids the installation of electronic tracking devices on the car of any other individual who is the owner, lessor or lesse of that vehicle without consent from the individual being trackedExceptions:- Law enforcement- ParentsPenalties:- Class A misdemeanor © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  19. 19. TexasLaw: Tex. Penal Code Ann. §16.06Contents:- Forbids the placement of “electronic or mechanical tracking devices” on the vehicles of other individuals g without consent.Exceptions:- Law enforcement- Licensed private investigators working with consent of the car owner- Good Samaritan ExceptionPenalties:-Class A misdemeanor © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  20. 20. III. Potential Pitfalls of GPS Employee Tracking p y g © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  21. 21. Employee Privacy Concerns1. State Constitutions: Invasion of Privacy Claims y - While few states specifically regulate the use of GPS tracking by employers, state privacy laws may be used to challenge the use of GPS tracking by employers. Example: Washington State’s Constitution prohibits the infringement of a person’s “private affairs affairs” without the authority of law 9 law. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  22. 22. State Tort Law2. State Tort Law: Invasion of Privacy Claims - Where not expressly protected by a state constitution, state tort law may protect an individuals right to privacy. Two common-law claims that are potential liability issues for Employers who use GPS are, unreasonable ibl intrusion and P bli i given to a i d Publicity i public life10 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  23. 23. Types of State Law Tort Claims 11Unreasonable Intrusion:1.1 An intentional invasion2. Highly offensive to a reasonable person3.3 Occurring where there is a reasonable expectation of privacy*Must have expectation of privacy © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  24. 24. Types of State Law Tort Claims Continued…Publicity Given to a Private Life:121. Individual created publicity regarding an event that concerned the private life of another2.2 The event(s) publicized is the kind that is ( ) g y (a) highly offensive to a regular p g person and (b)is not of legitimate concern to the public*Must be “publicized” © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  25. 25. IV. CIV Current Trends in GPS T ki L T d i Tracking Laws © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  26. 26. 1. GPS Tracking in Criminal CasesU.S. v. Jones, 565 U. S. ____ (2012) , ( )Facts: - Nightclub owner was suspected of dealing drugs. - Without a proper warrant, the police placed a GPS tracker on his vehicle and subsequently used this information to convict the owner.Outcome: - The warrantless GPS tracking amounted to a warrantless search and as such was unconstitutional* © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  27. 27. 2. GPS Tracking by Employers- Generally, courts have held that there is no reasonable expectation of privacy in relation to property owned by the employer… © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  28. 28. GPS Tracking by Employers Continued…Elgin v. St. Louis Coca-Cola Bottling Co. 2005 U.S. Dist. LEXIS 28976 (E D M 2005) (E.D. Mo.Facts: -Coca-Cola placed GPS tracker on distribution van after p cash shortages. -Employee was cleared of any wrongdoing but was notified that GPS had been used to track him. The employee sued claiming that the G S tracking was an GPS invasion of his privacyOutcome: -No expectation of privacy in a company owned vehicle and that the GPS tracking had only revealed “highly pubic” information about where the van had been. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  29. 29. GPS Tracking by Employers Continued…Willie Tubbs v. Wynne Transport Service, Inc., 2007 U.S.Dist. LEXIS y 28920 (S.D. Texas 2007)Facts:- GPS was installed on all Trucks in transport company’s fleet. company s fleet- Truck driver was involved in an altercation with company that resulted in his arrest- Aft his arrest, the employee sued claiming th t th GPS system After hi t th l d l i i that the t represented an invasion of his privacyOutcome: -While the case settled on other grounds, the court dismissed the invasion o p acy c a noting t at it was not suppo ted by law. as o of privacy claim ot g that t as ot supported a © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  30. 30. GPS Tracking by Employers Continued…- After U.S. v. Jones, Employer usage of GPS , p y g tracking may be back up for debate because of the two lines of reasoning adopted by the Court: 1. 1 That a GPS tracker represented a physical entry onto an individuals personal property (not threatening to an Employers ability to track employees as th would own th property). l they ld the t ) 2. That a GPS tracker represents a violation of an individual s individual’s right to privacy (may have implications on private employers ability to track using GPS). © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  31. 31. V. Best Practices for GPS Tracking byEmployers: Five Tips to Avoid the Pitfalls of GPS Tracking © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  32. 32. 1. Become Familiar with the Privacy Laws That Aff t Y Th t Affect Your Company C- Some states contain specific provision relating to the use of GPS tracking- Become familiar with how your state has interpreted the right to p p g privacy y- Remain up to date o c a ges in t e law e a up-to-date on changes the a © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  33. 33. 2. Give Notice of GPS Tracking to Employees E l- Create a GPS tracking p g policy y- Include the GPS tracking p g policy in all y employment contracts- Include an addendum to the contract giving consent to track- Notify Employees of any changes in policy © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  34. 34. 3. Limit the Use of GPS Trackers to Company-Owned P C O d Property t- Based on prior cases, employees probably do not have an expectation of privacy with relation to employer- owned property including: cars, cell phones, and personal di it l assistants (PDA ) l digital i t t (PDAs).- Placing GPS devices on or inside of company owned property leaves little danger of violating state trespass f laws if GPS trackers are placed on company property.- If property is leased to employees, there may still be a notice requirement to place a GPS tracker on a vehicle under state law. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  35. 35. 4. Use GPS Tracking Sparingly- Only Monitor During Work Hours!- Only employ GPS monitoring where other means of (legal) surveillance have come up short.- Only monitor where t e e is a reasonable be e O y o to e e there s easo ab e belief that information gained could prove wrongdoing on the part of the employee. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  36. 36. 5. Protect Information From Being Disclosed Di l d- Become familiar with state and federal laws relating to the disclosure of employee records. g p y- Be safe, not sorry: make sure any information safe collected from GPS tracking is kept secure and confidential. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  37. 37. Sources:Works Cited:1.1 GPS Overview, Gps gov (April 12 2012) http://www gps gov/systems/gps/ (last visited Overview Gps.gov 12, 2012), http://www.gps.gov/systems/gps/ June 6, 2012).2. Id.3. Id.4. Tracking Employees Using Technology, Neslon Adrian Blish and Sharon P. Stiller. ACC Docket (July/August 2009). D k t (J l /A t 2009)5. Id.6. Id.7. Id.8.8 Location Surveillance by GPS: Balancing an Employer’s Business Interest with Employer s Employee Privacy, Kendra Rosenberg. 6 Wash J.L. Tech. & Arts 143 (2010).9. Privacy Protections in State Constitutions, National Conference of State legislatures (last visited June 6, 2012), http://www.ncsl.org/issues-research/telecom/privacy-protections-in- state-constitutions.aspx (last visited June 6, 2012)10. Location Surveillance by GPS: Balancing an Employer’s Business Interest with10 Employer s Employee Privacy, Kendra Rosenberg. 6 Wash J.L. Tech. & Arts 143 (2010).11. Stopping Employees In Their Tracks: GPS Tracking of Employees, David Marshall and Craig Friedman. Mealey’s Litigation Report: Employment Law (Vol. 4, #3 Oct. 2007).12. Id. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  38. 38. Questions? Brian J. Moore Bi J M (304) 357-9905 Brian.Moore@dinsmore.com Ashley L. Pack (304) 357-9937 Ashley.Pack@dinsmore.com Ashley Pack@dinsmore com © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  39. 39. The End © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
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