Employer GPS Tracking: Is it Legal?

Employer monitoring of employees through the use of a GPS system is not a new phenomenon. CNET wrote an article about the growing use of cell phone GPS systems to track employees back in 2004. However, the legality of employers using GPS tracking is still an open question, especially as the Supreme Court has recently ruled that placing a GPS on someone’s vehicle is a search and is unconstitutional without a warrant.

The Legality of GPS Tracking

According to an article in The Huffington Post, the Supreme Court unanimously held that placing a GPS device on a suspect’s vehicle constituted a search of that vehicle. Before placing the GPS therefore, officers need to obtain a warrant so as not to be in violation of the Constitutional protections guaranteed by the Fourth Amendment.

This case deals with government intrusion into a person’s private use of his vehicle without a warrant though. It does not directly address the issue of whether an employer may use a cell phone- and especially one provided by that employer- to track employee movements, nor does it address whether employers can use GPS devices on vehicles.

A New York case that did tackle an employer’s use of a GPS, Cunningham v. New York State Department, came to a different conclusion. In Cunningham, the court said that an employer’s use of a GPS to track employee whereabouts was reasonable because the employer suspected the employee was lying and falsifying records.

The Takeaway

Unfortunately, the current case law does not provide definitive guidance for employers who are considering employee monitoring. The best option employers have is to tread carefully and to use GPS tracking only when obviously necessary and appropriate for limited purposes. Employers should also watch state legislatures and subsequent court cases for further developments on whether GPS tracking is permitted in the private sector or not.

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