Employers are increasingly tracking their employees’ whereabouts as smartphones, laptops, and vehicles equipped with location-tracing technology become ever more prevalent. Statutes restricting the use of location-tracking devices typically do not impinge upon such tracking because the law’s definition of a tracking device does not encompass phones or laptops enabled with Global Positioning System (GPS) technology or because the law permits the vehicle’s owner to install a tracking device. The question remains, however, whether tracking employees’ location constitutes a common law invasion of privacy.

A recent decision by the federal court of appeals in the District of Columbia suggests that, in certain circumstances, employers who track their employees’ location could face liability for invasion of privacy. In U.S. v Maynard (pdf), the court held that the FBI had infringed upon the criminal defendant's reasonable expectation of privacy by “tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant.” Key to the court’s decision was the intimate knowledge of the suspect’s life that could be gleaned from pervasive location-tracking as opposed to observing the suspect’s public movements for a short period of time:

Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

Based on this distinction between pervasive and non-pervasive tracking, the court concluded that a “reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ‘disconnected and anonymous.’”

While the court’s decision construes only Fourth Amendment protections against government intrusions, the court’s observations clearly could be used to support a common law claim for invasion of privacy against an employer that uses GPS-enabled vehicles, laptops or smartphones to engage in surreptitious, 24/7 location tracking of its employees. That being said, the D.C. Circuit’s decision splits from the rulings of three other circuits — the Seventh, Eighth, and Ninth, making it likely that the D.C. Circuit’s decision will be subject to U.S. Supreme Court review. These other courts held that the warrantless use of a location-tracing device does not violate the Fourth Amendment because a criminal suspect cannot reasonably suspect privacy in his public movements. These cases, therefore, can be used to defeat an invasion-of-privacy claim based on an employer's use of pervasive location tracking.

Nonetheless, the D.C. Circuit’s decision highlights several steps employers can take to reduce the risk of privacy-based claims arising from location tracking: location-tracking in a manner that would make an invasion of privacy claim far less likely:

• Avoid surreptitious location tracking
• Provide employees with detailed, written notice of any location tracking
• When practical, have employees acknowledge receipt of the notice
• Limit location-tracking, when technically feasible, to working hours
• Restrict access to location-tracking information to those with a need to know

This entry was written by Philip L. Gordon.

Photo credit: Paul Downey