Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Private employers are increasingly implementing location-tracking devices — Global Positioning Systems (GPS) and Radio Frequency Identification (RFID) — to manage their workforces. These devices, for example, permit insurance companies to confirm that adjusters who may never come to the home office are, in fact, adjusting; help delivery companies identify the most efficient routes for their drivers; and allow hospitals to find nurses in an emergency. Employees, however, often shirk at the notion that their employer is tracking their every move.
The New York Court of Appeals, New York State’s highest court, recently issued an opinion in the case captioned, People v. Weaver, reflecting that court’s fundamental discomfort with pervasive and surreptitious location tracking by law enforcement. In that case, a police investigator, who did not have a warrant, secretly placed a location-tracking device on the defendant’s van. For 65 days, the police tracked the van’s movements, unbeknownst to the driver. Prosecutors ultimately used the location information to obtain the defendant’s conviction for crimes related to two burglaries.
The court’s majority emphasized that location-tracking technology is fundamentally different from other forms of surveillance: “any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant relentless tracking of anything is now . . . entirely practicable.” The court reached a high note in expressing its concern over tracking technology’s impact on personal privacy:
The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods . . . . Disclosed in the data retrieved from the transmitting unit . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits.
Ultimately, the court ruled that the warrantless use of the location-tracking device in Weaver was an unreasonable search in violation of New York State’s equivalent to the Fourth Amendment to the United States Constitution.
While the court’s decision addressed location tracking by law enforcement, the case is significant for private employers. An employee arguably could rely upon the New York decision to allege a common law claim for intrusion upon seclusion when an employer engages in surreptitious and pervasive location tracking. To reduce the risk of such a claim and to maintain good employee relations, employers should consider taking the following steps:
- Avoid surreptitious location tracking
- Provide employees with detailed, written notice of location tracking
- Have employees acknowledge receipt of the notice
- Avoid 24/7 location tracking
- Limit tracking, when technically feasible, to business hours