From time to time we are asked by clients whether they can place Global Positioning System (GPS) units on company or agency owned cars in order to keep track of employees whom they believe are misusing the vehicles to engage in unauthorized or excessive travel unrelated to their job.  The concern has been whether use of these devices in this manner invades the privacy rights of the employees.  Can employers place GPS devices on their own vehicles in order to track employee movement? 

On-the-Road.jpgIn a decision coming from a New Jersey appeals court reminiscent of a 1948 film noir, the answer may be yes.  In Villanova v. Innovative Investigations, Inc., the New Jersey court held that, as long as the car is not driven to a secluded location, there is no right of privacy. 

This case arose not from an employment situation but one involving a marital dispute.  Mrs. Villanova believed her husband was having an affair and she hired an investigative firm, Innovative, to follow him.  Innovative suggested that she buy a GPS device and place it on the family car he drives.  She did so and Mr. Villanova eventually brought a lawsuit against Innovative for invading his privacy.  The New Jersey court held that Villanova had no right of privacy as long as he was driving on public streets.

“In the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, he had no claim for invasion of privacy.”

New Jersey law, like California’s, contains a constitutional right of privacy.  However, tracking an individual’s driving with a GPS device no more invades that individual’s privacy than does simply observing or following him “or even taking his photograph while he is walking on a public highway since he is not then in seclusion and his appearance is public and open to the public eye.”  Further, a person traveling in an automobile on public thoroughfares “has no reasonable expectation of privacy in his movements from one place to another.”

Issues regarding use of GPS devices are likely to come up in other contexts such as whether an employer must negotiate with its employees’ union before placing GPS devices on the employer’s own vehicles.  (We think the answer is “no.”)  We understand the U.S. Supreme Court is considering whether law enforcement violates a suspect’s Fourth Amendment privilege against unreasonable searchers by covert GPS tracking.

Under California law, employers may track the use of vehicles they own or lease.  The firm’s Privacy Issues in the Workplace workbook has a section on GPS tracking devices, as well as a sample Vehicle Electronic Tracking Technology Policy.