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Employers Are Using Location Awareness Technology to Keep Track of Their Employeesby John Canoni 1/8/2004 The Technology Location awareness technology has come to the workplace. Global Positioning Systems (GPS), originally developed by the military in the 1970s, uses a network of orbiting satellites to pinpoint the location of a vehicle or a person within fifteen feet. GPS data can also determine the vehicle’s speed and prior stops. By 2006, four out of every five new vehicles will be equipped with a book-sized GPS unit that fits neatly under the dashboard or the driver’s seat. Police can easily locate GPS-equipped vehicles when they are stolen. Locating employees using company-provided cell phones is also becoming much easier. A 1999 federal law requires all cell phones to use GPS by late 2005 to help emergency crews respond to 9-1-1 calls. This requirement is already in effect throughout the European Union. Nextel, a major cell phone manufacturer, includes GPS on all new phones. Locating employees through their cell phones is less accurate because cell towers are used and cell phones don’t work in some areas. Operators are required to provide police with information allowing them to locate an individual’s mobile phone. This information assists in locating missing persons. Companies using location awareness technology in company-provided vehicles and cell phones report immediate increases in employee productivity. This information has helped employees beat speeding tickets and provide alibis during criminal investigations and has helped companies defeat customer damage complaints (e.g., family pet run over in driveway, car allegedly sideswiped by company vehicle) and satisfy customers (e.g., no longer will the delivery be “between 2 p.m. and 5 p.m.”). Location awareness technology is speeding rapidly through the population. Many new private cars have GPS tracking systems that provide directions and offer quick location assistance when the vehicle is disabled. Parents give $200 watch-like personal locators to their teenage children and similar tracking devices to individuals with Alzheimer’s. The Law No federal law protects employees when their employers use location awareness technology. Employees must seek protection, if any, under state privacy laws. However, courts have narrowly protected only certain territory (for example, an employee’s home) from electronic monitoring. Employees have much less expectation of privacy when in public places. In Nader v. General Motors, 25 N.Y.2d 560 (1969), GM agents trailed Ralph Nader, the author of “Unsafe at any Speed,” for days, including his visits to his bank. The court dismissed Nader’s privacy claims noting that the mere observation of a person’s public activities was not an intrusion on seclusion. Law enforcement personnel frequently use location awareness and tracking devices. The overwhelming majority of courts have held that these devices can be attached to suspects’ vehicles without their consent and without obtaining a warrant. These are not unreasonable searches in violation of the Fourth Amendment, U.S. v. McIver, 186 F.3d 1119 (9th Cir. 1999), cert. denied, 528 U.S. 1177 (2000) (GPS and tracking device lawfully attached to suspect’s car while parked in his driveway); People v. Zichwic, 94 Cal. App. 4 th 944 (2001), review denied, 2002 Cal. LEXIS 2326 (March, 2002) (electronic monitoring device lawfully attached to outside of truck while in driveway as there is no reasonable privacy expectation in what is regularly exposed to public view); Osburn v. State, 44 P.3d 523 (Sup. Ct. Nev., April 2002) (electronic monitoring device lawfully attached to car bumper while car was parked on street outside suspect’s home as no expectation of privacy); Hudspeth v. State, 349 Ark. 315 (Sup. Ct. Ark., June 2002) (video camera on neighbor’s property near controlled substance laboratory in open field did not need warrant to record activity in an area where the suspect had no reasonable expectation of privacy). The few contrary criminal law decisions are illustrated by Washington v. Jackson, 46 P.3d 257 (Ct. App. Wash. 2002), aff’d, 76 P.3d 217 (Sup. Ct. Wash., September 2003) where the court imposed the requirement of a warrant because of the possible intrusion into the suspect’s private visits to his doctor’s office, gambling places, and “the wrong side of the tracks.” However, these are criminal, not civil, cases and, moreover, location awareness devices embedded within company-provided vehicles and cell phones are primarily, if not exclusively, used during working hours, not during the employee’s nonworking personal time. Employee privacy expectations can be defeated and/or eliminated by employer policies. Currently, employees understand from employer policies that their use of other company equipment such as telephones and computer systems can be monitored at any time by their employer and that the employer has access to their telephone calls and e-mail messages when they use that company equipment. Company-provided vehicles and cell phones are no different. Employee consent to employer monitoring of, and use of data from, location awareness technology is readily obtained through employer policies and the employees’ continued use of that company-provided equipment after such policies are promulgated. Employer policies should advise the employee that the location awareness technology exists within company vehicles and cell phones, confirm that continued use with this knowledge is consent to employer access to the information provided, and caution employees that damaging or disabling the technology or tracking features or shutting the systems down during working hours is not permitted. Employers may wish to tell employees that they will monitor employee activities only during working hours and/or when the company equipment in question is being used. Employees can then use their own vehicles and personal cell phones for personal non–work-related activities. Employees will be inventive. Sleeves already exist that fit over cell phones and block wireless signals. The technology that has produced small, inexpensive tracking devices can also produce blocking or interference devices. Employees’ company-provided cell phones will predictably run out of batteries often and be lost regularly. Employers can expect resistance from unions. The Teamsters allowed UPS to use location awareness technology on the condition that GPS data would not be used to discipline or evaluate employees. Unions will demand bargaining over location awareness policies as they did when employers distributed laptops and pagers to field personnel or installed video cameras at work. If unions cannot prohibit GPS data from being used to discipline employees, they will seek to require employers to have a reasonable suspicion of employee wrongdoing before accessing such data obtained. In one New Jersey case, an internal police department investigation comparing GPS data from police vehicles with the officers’ daily activity reports led to four officers pleading guilty to falsifying records. A fifth officer contested the charges through arbitration even though GPS data showed he was at a local diner and a nearby McDonald’s for three consecutive hours during a midnight tour. Employees protested ten to fifteen years ago when employers distributed pagers. They didn’t want to carry them and were upset that they were expected to keep them on while working (and even afterwards when on call) and required to call back within a specified period after being paged. These protests have subsided and pagers are in common use. Location awareness technology will similarly become an integral part of the virtual workplace after initial protests. Employers should affirmatively advise their employees this technology is being used and distribute revised privacy policies covering it. Employee awareness of location awareness technology and policies produces employee consent and enables employers to achieve the productivity and efficiency gains this new technology can provide. The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. |
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