Suspecting that its director of staff and organizational development was skipping work and submitting false time records to conceal his unauthorized absences, New York’s Department of Labor enlisted the state’s Office of Inspector General (OIG) to investigate. The OIG surreptitiously attached a location tracking device to the director’s personal vehicle and tracked the vehicle 24/7 for one month. The location tracking corroborated the department’s suspicions, revealing that the director’s car had not been at the office when the director’s time records stated that he had been there. Nonetheless, the New York Court of Appeals in Cunningham v. New York State Dept. of Labor ruled that the Department of Labor could not rely on this evidence to support disciplinary charges. Although the case addresses the reasonableness under the Fourth Amendment of a search by a public employer, the case provides some useful guideposts for private employers seeking to use location tracking as an investigative tool.

To begin with, the New York court, following cases that were the subject of prior blog posts, ruled the OIG’s placing a location tracking device on the director’s personal vehicle was a search, meaning the director was entitled to Fourth Amendment protections. While the Fourth Amendment does not limit a private employer’s ability to search its employees’ personal vehicles, several states have enacted legislation that makes it illegal for a private employer to place a location tracking device on an employee’s vehicle without that employee’s consent. These states include the following: California, Delaware, Hawaii, Louisiana, Michigan, Minnesota, Tennessee and Texas. As explained in a prior blog post, in the wake of U.S. v. Jones, the U.S. Supreme Court’s 2012 “GPS decision” highlighting the dearth of state legislation on location tracking, more states will likely enact legislation regulating the use of location tracking by law enforcement and by private individuals.

Even when no statute prohibits an employer from placing a location tracking device on an employee’s personal vehicle or when an employer uses location tracking in a company-owned vehicle to investigate an employee’s whereabouts, the tracking itself, as the New York case illustrates, must be reasonable and not excessive. In determining whether the OIG’s tracking of the director was reasonable, New York’s highest court asked two questions: First, was the Department of Labor justified in initiating the location tracking in the first place? Second, was the location tracking “reasonably related to the objectives of the search”? Although these criteria emanate from the U.S. Supreme Court’s Fourth Amendment jurisprudence, a private employer should expect that a court considering an employee’s common law claim for invasion of privacy based on location tracking will ask similar questions. Both the Fourth Amendment and common law are grounded in notions of reasonableness when evaluating a workplace search.

In Cunningham, New York’s highest court ruled that the OIG’s use of location tracking was justified at its inception because other evidence suggested the director’s fraudulent conduct; however, the court also ruled that the location tracking was excessive and, therefore, violated the Fourth Amendment. The court relied principally on two facts. The tracking occurred “on all evenings, on all weekends and on vacation” even though the director’s activities at those times were irrelevant to the purpose of the investigation. In addition, the OIG made no effort to limit the location tracking to working hours even though the OIG had the ability to do so. To support the latter conclusion, the court noted that the OIG had twice replaced the location tracking device with a new one and then had removed the device entirely. The OIG likely could have avoided this adverse ruling if it had removed the location tracking device at the end of the work week and before the director went on his scheduled vacation.

Private employers should be particularly aware of the potential for an excessive search if they activate location tracking on a company-issued smartphone or on a personally owned phone used in a “Bring Your Own Device” (BYOD) program. Tracking a smartphone can be even more intrusive than tracking a car because the employee will likely take the smartphone into private places, such as the employee’s home, a locker room, or a church confessional. Consequently, almost any use of location tracking on a smartphone outside scheduled working hours runs the risk of being excessive.

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