GPS Tracking of Government Employees: A Possible Fourth Amendment Violation

 

This post is written by Senior Editor Robert Thompson. Opinions and views expressed herein are those of the writer alone.

As technology advances and bottom lines diminish, companies are striving to find new ways to increase efficiency while maximizing profits. One such tactic is to track their employees’ efficiency through GPS tracking devices. Companies track and log their employees every movement hunting for a dawdling employee. In the “name of efficiency,” companies have begun placing GPS tracking devices on both private and company-owned vehicles and are tracking their employees’ every step using the location services available in most modern cell phones. But what happens when a government employer tracks its employees? Are the employees’ Fourth Amendment rights thrown to the curb, all in the name of efficiency? No—government employers must not track their employees who have a reasonable expectation of privacy without providing a legitimate reason for such tracking.

 

In O’Connor v. Ortega, the Supreme Court established a test for workplace privacy.[1] This case addressed whether a doctor who was an employee of a state-run hospital had a right to privacy to personal property within his office.[2] The Supreme Court held the Fourth Amendment restraints on search and seizure apply to government employers searching their employees.[3] However, the Court maintained “requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome.”[4] Thus, the Court created an exception to the warrant requirement in a public workplace.

 

The O’Connor Court outlined a two-prong test to determine the reasonableness of an employee search.[5] First, courts should look to the operational realities of the workplace to determine if the employee had a reasonable expectation of privacy.[6] Second, if the employee did have a reasonable expectation of privacy, courts should balance this expectation against the interest of the government employer.[7]

 

Yet, dose this 1987 test apply to today’s ever-growing workplace overflowing with technology? Yes. Courts can apply the O’Connor test to today’s workplace.  For example, in Cunningham v. New York State Dept. of Labor, a state employee claimed his Fourth Amendment rights were violated when he was tracked via GPS.[8] The government employer was investigating the employee for unauthorized absences and the falsification of records.[9] Without the employee’s knowledge, the employer attached a GPS device to the employee’s personal car.[10] This device recorded all of the employee’s movements during daytime, evenings, weekends, and even when the employee was on vacation.[11] This violation of the employee’s privacy continued for over a month.[12] The GPS data collected showed inaccuracies in time reports the employee submitted to his employer.[13] And the employee was ultimately terminated.[14]

 

The court applied the O’Connor v. Ortega framework. First, the court reasoned the employee had a reasonable expectation of privacy during his off-the-clock-time.[15] Second, the search was not reasonable because its scope was much broader than necessary to establish misconduct.[16] Therefore, because the search was not reasonable and was “excessively intrusive,” it constituted an invasion of the employee’s privacy.[17]

 

Employees are rarely awarded an expectation of privacy in the workplace, even in the most unreasonable situations. However, employers should still use caution when engaging in GPS tracking techniques. The reasonable expectation of privacy should be determined after a careful examination of the following: notice given to the employee regarding GPS monitoring policies, whether the device used to track the employee is company-owned, and whether the tracking is taking place during working hours.

 

Government employers must provide its employees the protection of the Fourth Amendment. Courts can use the O’Connor v. Ortega framework in GPS tracking circumstances. After determining an employee had a reasonable expectation of privacy, courts should balance that reasonable expectation of privacy against the government employees legitimate interest. If the reasonable expectation of privacy outweighs the government employer’s interest, the employer has violated the employee’s Fourth Amendment rights.

 

 

[1] O’Connor v. Ortega, 480 U.S. 709, 715 (1987).

[2] Id. at 710.

[3] Id. at 709.

[4] Id.

[5] Id. at 725–26.

[6] Id.

[7] O’Connor v. Ortega, 480 U.S. 709, 725–26 (1987).

[8] Cunningham v. New York State Dep’t of Labor, 997 N.E.2d 468, 471 (2013).

[9]   Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Cunningham v. New York State Dep’t of Labor, 997 N.E.2d 468, 471 (2013).

[15] Id.

[16] Id. at 472-73.

[17] Id. (The court reasoned that “[the employee] examined much activity with which the State had no legitimate concern—i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity—especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to [ ] stop short of seven-day, 24-hour surveillance for a full month. The State managed to remove a GPS device from petitioner’s car three times when it suited the State’s convenience to do so—twice to replace it with a new device, and a third time after the surveillance ended. Why could it not also have removed the device when, for example, petitioner was about to start his annual vacation?).

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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