By Beth Ensell, Albany Government Law Review
On November 23, 2011, the New York Appellate Division, Third Department issued a decision that allows employers to investigate employee misconduct using Global Positioning System (“GPS”) devices without first obtaining permission from the employee or a court. The investigation at issue in the appeal centered on Michael Cunningham, the former Director of Staff and Organizational Development for the New York State Department of Labor. Mr. Cunningham’s employer suspected that he engaged in “a pattern of taking unauthorized absences from work as well as falsifying time records.” The New York Office of Inspector General (“OIG”), after receiving the case by referral, decided to use a GPS device to assist in gathering evidence against Mr. Cunningham.
The data OIG gathered by the GPS device attached to Mr. Cunningham’s personal vehicle provided the most compelling support for four of the thirteen charges of misconduct against him, though alternative evidence also supported each charge. The hearing officer, after considering the GPS data coupled with the other evidence submitted for review, recommended Mr. Cunningham’s termination from his position. The Department of Labor agreed with this recommendation and ended their relationship with Mr. Cunningham who promptly filed suit. He argued that the use of a GPS impinged upon his constitutional right against unlawful searches.
On appeal, the Third Department noted immediately that Mr. Cunningham confused the standard for excluding evidence in administrative proceedings with the standard in criminal cases. In 2009, the New York Court of Appeals prohibited the admission of GPS data gathered without a warrant against criminal suspects in New York state courts. However, this decision does not prevent employers from using GPS data to investigate “work-related misconduct of one of its employees” so long as the employer can show it acted with reasonableness under the circumstances. In this case, the court found that the OIG, acting on behalf of the Department of Labor, did in fact act with reasonable care when placing two GPS devices at different times on Mr. Cunningham’s personal vehicle for one month to monitor his whereabouts.
The court reasoned that Mr. Cunningham could “hardly have been surprised to be under investigation in light of his recent past, as well as his ongoing problems at work.” More importantly, the court accepted OIG’s assurances that the data retrieved from the devices only reflected work-related activities. However, the court pointed out that the admission of GPS data against an employee remains a factual inquiry in each case. Since this employee had a “history of discipline problems” as a “high-level state employee” and had “recently thwarted efforts to follow him on nonwork-related ventures during work hours,” use of the GPS devices was appropriate.
The dissent, on the other hand, disagreed with the reasonableness of the use of the GPS devices in that the devices continued to store data on Mr. Cunningham’s whereabouts after the workday ended. In fact, the investigators had access to Mr. Cunningham’s movements “24 hours a day, seven days a week” which included a “week-long family vacation.” Furthermore, the administrative hearing against Mr. Cunningham demonstrated OIG had obtained “non-GPS evidence,” which, for the most part, proved equally persuasive on several of the charges. Such “unfettered use of GPS devices ‘to pry into the details of people’s daily lives,’” the dissent argued, quoting the Court of Appeals in People v. Weaver, “‘is not consistent with the values at the core of our State Constitution’s prohibition against unreasonable searches’” and seizures.
This case, like many before it, stands for the premise that employees have a lower expectation of privacy in work-related investigations. This concept has even been applied when employees, during their working hours, act criminally against non-employees. In June 2011, a New York City Criminal Court judge allowed for the admission of GPS data against a taxicab driver accused of overcharging approximately three hundred customers. The court in that case concluded that the driver could not reasonably expect privacy in the information gathered from the GPS-capable device placed in his cab in order to comply with regulations. New York State law requires taxi drivers to submit the data from the mandatory device for review to the Taxi and Limousine Commission (“TLC”). The court further reasoned that prosecutors had access to limited data that only reflected the driver’s movements while in-service, the exact subject of the investigation.
In 2007, TLC successfully mandated a policy that all New York City cabs come equipped with a “Taxicab Technology System” (“TTS”) which could consist of “four ‘core services’” including “automated trip data collection” and “data transmission such as trip tracking.” The hardware included installation of a GPS device. Several drivers sought to enjoin TLC from implementing the policy but were denied relief. The drivers argued that the installation of the GPS facet of the TTS system would violate their privacy rights under the Fourth Amendment. That court, in denying the preliminary injunction, noted that the GPS argument would likely be unsuccessful on its merits. TLC had taken steps to ensure that the scope of the data available to third parties, besides the TTS vendors, would be limited to times when the taxi was in-service. The court also noted that a taxicab driver has a diminished expectation of privacy in the movements of his cab.
Finally, the court reasoned that a “person’s privacy interests are not absolute and ‘can be overcome by a sufficiently weighty government purpose.’” The court applied the “intermediate scrutiny test” and found that TLC has an important government interest in improving and regulating taxi service for the public good. Furthermore, the City of New York has a “substantial interest in promoting taxi customer service, taxicab ridership, and passenger and driver safety.” The court found the state law claims in this respect equally unpersuasive.
However, one must draw a distinction between the required installation of a device in an employer vehicle and the secret placement of a device on an employee’s personal vehicle. The dissent in the Cunningham case takes issue with the court’s decision because the court’s decision glides over the rather unlimited scope of the data collection. What type of issues could access to such data raise? What if an employer discovers illegal activity being conducted by the employee unrelated to the job and during non-working hours? What can or should the employer do with this information? It is hard to imagine a legitimate business reason for gathering data about an employee once they have ended their shift.
Earlier this year, the U.S. Supreme Court granted certiorari on the United States v. Jones case involving the warrantless use of a GPS device to track a suspect in a criminal case. Oral arguments took place early in November and many anxiously await the court’s decision on this issue. The case could, for all intents and purposes, “better define what an individual’s zone of privacy is.” Such a definition would not solely affect criminal investigations, but could result in a re-evaluation of the use of GPS devices to investigate employees as well. While the Justices grapple with the extent to which the device was used to track criminal suspects over periods of months, employment attorney may be left to ponder the legality of gathering data on employees while the employees are “off-the-clock.” Scope, like in the criminal cases before the Supreme Court, poses a difficult issue in the employment context.
Perhaps the solution, in the employment context, would consist of drafting policies to ensure the privacy of data while the employee is off duty, like that implemented by TLC in New York City. A well-written policy in this respect could not only prevent third-party vendors from improperly disclosing information about employees but could serve as an admonition to the employees about the potential use of a GPS device. The ability of law enforcement to access this data, by subpoena or otherwise, must also be addressed. While we wait, with bated breath, for the decision in the Jones case, or for the New York Court of Appeals to decide whether to review the Cunningham case, employers can, for now, keep an eye on employees with a GPS device, even when their workday ends.
 Cunningham v. N.Y. S. Dep’t of Labor, 933 N.Y.S.2d 432 (App. Div. 2011).
 Id. at 433.
 Id. at 434.
 Id. at 435.
 Id. (citing People v. Weaver, 12 N.Y.3d 433, 447 (2009)).
 Id. at 435-36.
 Id. at 436.
 Id. at 437 (Spain, J., dissenting).
 Id. (quoting Weaver, 12 N.Y.3d at 466.)
 Andrew Keshner, Judge: GPS Data Used Against Cabbie Not Privacy Violation, N.Y. L.J. (2011), available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202502743322 .
 Alexandre v. N.Y. City Taxi and Limousine Comm’n, 07 Civ. 8175, 2007 U.S. Dist. LEXIS 73642, at *2 (S.D.N.Y. Sep. 28, 2007).
 Id. at *2-3.
 Id. at *3.
 Id. at *3-4.
 Id. at *30.
 Id. at *31.
 Id. at *32. (Compare with Weaver, 12 N.Y. 3d 433. It cannot be said whether the court in this case would rely on this assertion after the decision in Weaver).
 Id. at *33 (quoting Statharos v. N.Y. City Taxi and Limousine Comm’n, 198 F.3d 317, 332 (1999)).
 Id. at *33-34.
 Id. at *34.
 Id. at *35.
 U.S. v. Maynard, 615 F.3d 544 (2010), cert. granted sub nom., U.S. v. Jones, 131 S. Ct. 3064 (2011).