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"GPS Tracking of Employees: Balancing Employees’ Right to Privacy with Employers’ Right to Know," Dinsmore Webinar

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  • 1. GPS Tracking of Employees:Balancing EB l i Employees’ Right to l ’ Ri ht tPrivacy with Employers’ Right to KnowThe Law, Potential Issues, and Best Practices. Law Issues PracticesBy Brian J. Moore and Ashley C. Pack © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 2. Presenters Brian J. Moore Bi J M (304) 357-9905 Brian.Moore@dinsmore.com Ashley C. Pack (304) 357-9937 Ashley.Pack@dinsmore.com Ashley Pack@dinsmore com © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 3. We will be covering: -The use of GPS systems to track Th f t t t k employees -GPS tracking laws as they relate to employers -Potential pitfalls of using GPS technology p g gy to track employees -Current trends in the law -Best practices for the implementation of GPS tracking by employers © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 4. I. Tracking Devices Generally © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 5. What is a “GPS?”- “Global Positioning S stem” System”- Navigation and precise positioning tool.- C Commercially, GPS is used as a navigation and i ll i d i ti d positioning tool in airplanes, boats, cars, and for almost all outdoor recreational activities activities. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 6. 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 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
  • 7. Why Track Employees?Increased Efficiency:5- Streamlined travel- Real-time progress updates- Customer issuesCompliance with Governmental Regulations:6- Are workers taking their required breaks?- Are overtime rules being followed?Compliance with Safety Laws:- Speeding © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 8. Why Track Employees?Monitoring of Employees:7 g p y- Are company policies being followed?- Are timesheets accurate?- Are employees safe?- Are other methods of monitoring being subverted?- Are employees doing personal errands on company time?- Investigations © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 9. Common Monitoring Techniques - Placing GPS trackers inside of company-owned g p y vehicles - Issuing company-owned smart-phones or other electronic d i l t i devices with GPS tracking capabilities ith t ki biliti - Placing trackers on personally owned vehicles used in work-related activities* work related activities - Applications on smart-phones using GPS technology - “Swipe” cards © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 10. II. GPS Tracking Laws © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 11. State Statutes- 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
  • 12. 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
  • 13. 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 employer reasonably believes that an employee is engaging in conduct th t (i) violates th l d t that i l t the law (ii) violates th employer or th other i l t the l the th employees of the employer’s legal rights or (iii) creates a hostile workplace AND 2. Electronic 2 El t i monitoring may produce evidence of one of th above it i d id f f the b beliefs.Penalties:- Civil fine © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 14. 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
  • 15. 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
  • 16. State ConstitutionsProtect the right to p g privacy through direct y gprivacy protections as well as generalprotections such as incorporation of FourthAmendment protection. protectionExample: Washington State’s Constitution State sprohibits the infringement of a person’s “privateaffairs” without the authority of law.9 © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 17. State Tort LawInvasion of Privacy Claims - appropriating the plaintiffs identity for the defendants benefit placing the plaintiff in a false light in the public eye publicly disclosing private facts about the plaintiff unreasonably intruding upon the seclusion or solitude of the plaintiff © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 18. 11 Unreasonable Intrusion:1. An intentional invasion2.2 Highly offensive to a reasonable person3. Occurring where there is a reasonable expectation of privacy*Must have expectation of privacy Must © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 19. Publicity Given to a Private Life:12 1. Individual created publicity regarding an event that concerned the private life of another p 2. The event(s) publicized is the kind that is (a) highly offensive to a regular person and (b) s ot of eg t ate concern the (b)is not o legitimate co ce to t e public p*Must be “publicized” © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 20. III.III Current Trends in GPS Tracking Laws © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 21. GPS Tracking by Employers- Generally, courts have held that there is no reasonable expectation of privacy in relation to property owned by the employer… - Company-owned vehicles - Smart-phones © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 22. 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 public” information about where the van had been. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 23. 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
  • 24. GPS Tracking by Employers Continued…Matter of Cunningham v. New York State Dept. of Labor, 89 A.D.3d1347 (N.Y. Ap. Div. 2011)Facts:- A twenty year state employee was suspected of taking unauthorizedtime off and falsifying his time records.- Employer hired an investigator in an attempt to tail the employee, butthe employee realized he was being tailed.- Employer had investigator place a GPS on the employee’s personalvehicle to gather evidence regarding unauthorized absences absences.Outcome:- Court ruled that obtaining such information, via GPS, for one month wasnot unreasonable i th context of a noncriminal proceeding i t bl in the t t f i i l di involving a l ihigh-level state employee with a history of discipline problems who hadrecently thwarted efforts to follow him in his nonwork-related venturesduring work hours. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 25. U.S. v. Jones,U S v Jones 565 U S ____ (2012) U. S.Facts: - Nightclub owner was suspected of dealing drugs. - Without a proper warrant the police placed a warrant, 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
  • 26. Lessons Learned from Jones…- After U.S. v. Jones, Employer usage of GPS tracking may be back up for debate because of the two lines of reasoning adopted b th C t th t li f i d t d by the Court: - Fi t that a GPS tracker represents a violation of an First, th t t k t i l ti f individual’s right to privacy (may have implications on private employer’s ability to track using GPS). © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 27. Lessons Learned from Jones Continued…Additionally, Scalia’s opinion in US v. Jones could open the door to claims against employers under a common-law trespass theory, where the p p y property is not employer owned. p y In Jones, Scalia relied heavily on common law notions of trespass to disallow the government’s use of a GPS. GPS Where an employer placed a GPS on an employee’s p personal p p y, similar claims could be made. property, Where the property is employer-owned, this issue would be irrelevant. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 28. IV. Best Practices for GPS Tracking by Employers © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 29. 1. Become Familiar with the Laws That Affect Y Aff t Your Company C- Some states have specific laws relating to the use of GPS tracking- Become familiar with how your state has interpreted the right of privacy- St up-to-date on state and federal laws relating t Stay t d t t t df d ll l ti to the disclosure of employee records.- Be safe, not sorry: make sure any information collected from GPS tracking is kept secure and confidential. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 30. 2. Give Notice of GPS Tracking to Employees E l- Create a GPS tracking polic policy - Include an acknowledgement page. - Include a requirement to leave location services “on ” on.- Include the GPS tracking policy in all employment contracts- Notify employees of any changes in policy © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 31. 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. © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 32. 4. Use GPS Tracking For A Specific Purpose- Only Monitor During Work Hours © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 33. 5. Focus ONLY on Relevant Information-Only collect and store information that: - impacts their job performance - interferes with their job performance-Discipline Issues © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com
  • 34. 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
  • 35. 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
  • 36. The End © 2012 DINSMORE & SHOHL | LEGAL COUNSEL | www.dinsmore.com