Last summer we reported that an employer may under California law use GPS devices to track employer owned or leased vehicles. We recently revisited this issue in light of the U.S. Supreme Court’s unanimous ruling in United States v. Jones. Although Jones does address the use of GPS devices to track vehicles, the holding will not likely impact an employer’s ability to place Global Positioning System (GPS) devices on its own vehicles to track employee movement.
In Jones, the government obtained a warrant to attach a GPS device to a vehicle registered to respondent Antoine Jones’ wife. However, Jones was the exclusive driver of the vehicle. Although the warrant authorized the device’s installation on the undercarriage of the vehicle in Maryland within 10 days, the government installed the GPS on the 11th day and in the District of Columbia. The government used the device to track the vehicle’s movements for the next 28 days and the data collected from the device was used to convict Jones of multiple drug related charges.
The Supreme Court ruled that the government’s attachment of a GPS device to a vehicle without a warrant, and its use of that device to monitor the vehicle’s movements, violated the Fourth Amendment to the U.S. Constitution. The Court’s ruling is contrary to the result in United States v. Pineda-Moreno, where the U.S. Court of Appeals for the Ninth Circuit found that the government did not violate the Fourth Amendment when it placed a GPS tracking device on the undercarriage of a suspect’s car without a warrant.
There are at least two reasons why the holding in Jones will likely not affect a California employer’s ability to use GPS tracking. First, Jones examined the use of GPS in a criminal investigation, not in an employment setting. Second, it is already a crime under California law to use an electronic tracking device to determine the location or movement of a person unless the vehicle is owned or leased by the individual or employer doing the tracking. Thus, if the employer owns or leases a vehicle, the employer may use GPS or similar electronic tracking devices to monitor the location or movement of its employees in that vehicle.
However, we recommend that employers who wish to use GPS should only do so when they have a legitimate business reason to track, and they should give employees notice that they will be monitored. It is a good practice for employers to implement a written policy that informs employees that their usage of employer owned or leased vehicles will be monitored. The policy should also discuss the business reasons for monitoring such as measuring productivity, locating stolen vehicles and ensuring that employees are following their assigned routes.
Finally, at least one Superior Court has ruled in an unpublished decision that a public employer, Metrolink, was not required to meet and confer with an employee bargaining unit before installing two inward-facing cameras in all of its locomotive cabs for purposes of monitoring the activities of its engineers. Although public employers have a management right to use devices, such as electronic tracking technology, to monitor employees, they must negotiate the effects of the policy, such as discipline.
An in depth discussion on the use of GPS tracking devices can be found in LCW’s workbook on Privacy Issues in the Workplace. The workbook also contains sample policies regarding electronic device tracking. LCW can assist employers with drafting a policy.