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Wednesday, July 3, 2013

GPS Tracking Can Be Used in Employee Investigation Unless Use is Excessively Intrusive

Earlier this week, a New York Court appellate court ruled that a government employer can attach a GPS device to an employee's private car without a warrant in certain circumstances and use the findings to justify termination of that employee, but such use must not be "excessively intrusive" as presented in this particular case.

In Cunningham v. New York State Dept. of Labor, the State of New York Department of Labor (employer) attached a GPS device to an employee's car based on suspicions that the employee was submitting false time reports.  The state began an investigation relating to the employee's alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because after petitioner eluded an investigator who was following his car, the Department referred petitioner's conduct to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding.  That second investigation was the subject of the court case.
The GPS device was attached the employee's car without his knowledge, while the car was parked in a lot near the Department of Labor offices. This device and two later replacements recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation in Massachusetts.  The employer also engaged in other avenues of investigation: surveillance of an apartment building petitioner was suspected of visiting during working hours, subpoenas for E-ZPass records and interviews of petitioner and his secretary.

Based on the GPS findings, as well as the other investigation findings, the employee was terminated.  Petitioner challenged his termination in court.

The appellate court first determined that based on U.S. Supreme Court precedent, a workplace search based on a reasonable suspicion of employee misconduct is "justified at its inception." The search in this case clearly met that test, according to the NY court because the employer had ample grounds to suspect the employee of submitting false time records.  However, the court did not find that the particular search was reasonable in its scope, finding it "excessively intrusive" because it examined activity with which the State had no legitimate concern — i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Because the termination was based on the GPS findings which should have been suppressed, the court reversed the trial court's ruling and remanded it for further proceedings


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