Are employers allowed employ GPS tracking systems oversee movements their employees?

Workers should know ahead of time:

Your employer may be tracking you with a GPS device

GPS is particularly prevalent in the transportation and distribution services industry. That's because GPS devices installed in company vehicles help check the status of a package's delivery or provide assistance in the event of a vehicle breakdown. In these cases, employees may know that a GPS device is installed on the vehicle and that their whereabouts are being tracked.

But employers are now starting to use GPS to investigate suspected workplace misconduct. Is this legal? Or is it a violation of the employee's right to privacy, which could lead to claims of invasion of privacy?

The law in this area is relatively new, so the answers to these questions are not clear cut. Only a handful of courts (Law360 subscription required) have addressed whether an employer can legally use GPS to investigate employee misconduct. In the few rulings that have been issued, the key factor is whether the GPS device is installed on a company vehicle or a private vehicle.

Here are some examples where GPS tracking of employees has been discussed:

• Elgin v. Coca-Cola Bottling Company - Employer installs GPS devices on company vehicles to investigate suspected theft. The employee was cleared of any wrongdoing but filed a state law trespass claim. A Missouri federal court dismissed the claim, noting that the employer owned the vehicle and the only information disclosed was the vehicle's whereabouts.
• Tubbs v. Wynne Transport - Employer collected information about truck drivers through GPS devices installed on company trucks. Although the Texas court dismissed the trucker's claim of invasion of privacy, the court did not provide any substantive analysis of the use of GPS devices.
• Cunningham v. New York Department of Labor - An employer installed a GPS device on the personal vehicle of a state employee suspected of misconduct to collect information about his whereabouts. The employee was eventually fired. The employee then filed a lawsuit claiming the GPS device violated his privacy rights. A New York court held that placing a GPS device on an employee's personal vehicle was an unreasonable search that violated constitutional principles. The court said the scope of the search was unreasonable because the employees' personal vehicles were monitored 24 hours a day, seven days a week, and the GPS was not removed before the employees went on leave.

In two decisions involving taxi drivers, a New York City court has ruled that drivers have no right to require them to collect data from GPS devices installed in their vehicles. The court said the city had the right to find out if drivers were overcharging passengers and could only access the information during business hours.

In light of these rulings, employees should be aware that:

• Employers have a firm footing when installing GPS devices on company vehicles and using data collected while investigating misconduct, especially when employees know the device is on the vehicle and the information is collected only during work hours.
• Installing a GPS device on an employee's personal vehicle used for work purposes may violate privacy, especially if GPS data collection is not limited to work hours.

Is it legal to use GPS to track employees in California?

The newly passed law AB-984 came into effect on January 1, 2023. And it builds on other privacy laws in California, including the California Consumer Privacy Act (CCPA), also called AB375, which came into effect on January 1, 2020, and the California Penal Code Sec.637.7 discussed in the previous section.

The Penal Code Sec 637.7 prohibits the use of electronic tracking devices to track the movement or location of an individual, except when the owner of the vehicle has consented to the use of the device. AB-984 law, on the other hand, puts significant restrictions on how business owners can use a tracking device to monitor employees, but it doesn’t wholly prohibit its use.

Specifically, the Act provides that:

"An employer or a person acting on behalf of an employer shall not use other equipment to monitor an employee except during working hours and only when strictly necessary for the performance of the employee's duties."

For the purposes of this provision, the term "monitoring" includes, but is not limited to, "locating, tracking, viewing, listening to, or otherwise monitoring an employee" through a digital license plate during business hours, as long as it is "strictly necessary for the performance of employee duties."