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Legal, Creepy, or Both? A NY Court Rules that Employers Can Track Employees with GPS Technology

After the Edward Snowden scandal revealed the National Security Agency’s extrajudicial private telephone monitoring practices of private citizens, many have questioned the extent of an individual’s right to privacy.  Many questions still remain, but there is one that was recently answered by a NY court: How much privacy are we entitled to in the workplace?

This past June, a New York Court of Appeals ruled that, in certain cases, employers are permitted to track employees during working hours using GPS technology. The lawsuit was brought against the NYS Department of Labor (DOL) by DOL employee, Michael Cunningham, who worked as a high level coordinator.

When employers suspected Cunningham of taking unauthorized leaves and were unable to conduct a less invasive method of investigation, they referred the issue to the Office of the Inspector General. As part of the subsequent investigation, a state investigator installed a GPS device on Cunningham’s personal car without Cunningham’s knowledge or consent and monitored his whereabouts for a month.

Through this investigation the DOL uncovered that Cunningham was, in fact, falsifying time cards, resulting in his termination. When Cunningham became aware of the DOL’s use of a GPS device on his personal car, he appealed his termination and brought claims against the NY DOL for invasion of privacy and illegal search and seizure.

The Third Judicial Department of the Appellate Division ruled that the State’s investigative methods were reasonable given that Cunningham had already been under suspicion for misconduct in the workplace.

Cunningham consequently took the case to the New York Court of Appeals. The Court of Appeals agreed that warrantless workplace searches are permissible if the searches have legal justification, are reasonable and are not overly invasive. Nevertheless, the Court of Appeals reversed the Appellate Division’s ruling, saying that 24 hour tracking of an employee, including vacation time and weekends, is unreasonable and overly invasive.

In other words, the state’s use of a GPS device on Cunningham’s personal vehicle without a warrant would have been lawful had the DOL only tracked Cunningham during his working hours. The Court relied on supporting legal precedent from a Supreme Court Case, O’Connor v. Ortega, which says that public employers need not obtain a warrant before conducting searches of employees suspected of misconduct.

If you have been subject to a workplace search and believe that the search or investigative methods were unreasonable or overly invasive, contact an experienced employment attorney who can help you protect and assert your fundamental rights.

Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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