may be drawn.In the 2009 case of Haggins v. Verizon New England, Inc., a group of employees, represented by their union, sued their employer for requiring field technicians to carry company-issued cell phones so it could track their location. The employees claimed the policy violated their privacy rights under the Massachusetts Constitution and state law. The district court dismissed the case, and the First Circuit affirmed the dismissal. Notably, the district court introduced a precedent-setting balancing test, weighing employers’ interests in assessing employee effectiveness against employees’ rights to privacy.In 2015, an employee who was terminated for deleting tracking software from her mobile device pursued a wrongful termination suit. The case settled out of court, leaving no legal precedents but highlighting tensions between employee autonomy and employer surveillance.Some states have placed limitations on how and when employers may track the location of individuals. Notably, Section 637.7 of the California Penal Code restricts the use of electronic tracking devices unless the tracker is the registered owner or lessor of the vehicle.The significance of such state-level interventions is evident in a 2017 class action settlement, in which the US District Court for the Northern District of California ruled in favor of plaintiffs against the Bay Area Rapid Transit District for allegedly collecting location and other data from the personal devices of riders without clear user consent.In a watershed moment in 2018, the US Supreme Court ruled that collecting “cell site location information” without a warrant violated the Fourth Amendment, which protects against unreasonable searches and seizures. The court underscored the heightened privacy concerns associated with accessing personal location data compared to vehicle location data.It is unclear whether tracking employees within the confines of private property, such as a factory, would render such surveillance less susceptible to scrutiny than tracking em

The only legitimate rights belonged to the owner who had allowed Sprint to “ping” her phone’s movement so that police could follow the signal and apprehend the suspect. Under the circumstances of this case, the use of an electronic tracking device also complied with California Penal Code Section 637.7 (use of electronic tracking devices) because the owner had consented to its use.Training Points: This case suggests that imbedded GPS technology—with consent of the owner and without a warrant—can be used to locate stolen property without concern for later admissibility. A thief does not have a reasonable “expectation of privacy” in stolen property.

While these devices are primarily developed for private use, they are also used by an increasing number of agencies. Generally, California Penal Code section 637.7 prohibits individuals from using electronic tracking devices to determine the location or movement of a person. However, an important exception allows registered owners, lessors, or lessees of vehicles to use electronic tracking devices to track their own vehicles.

Some states, such as California, Connecticut, Delaware, and Texas, have laws requiring employee notice or consent before placing a GPS on an employee-owned car. For example, California Penal Code § 637.7 makes it a misdemeanor to install a GPS device to a person’s car without consent. Likewise, any GPS monitoring must also be reasonable in its scope.An employer can likely diminish an employee’s expectation of privacy in an area or device being searched by putting the employee on notice that a search may occur.

Takeaways When Looking at the Man In The MirrorIf you are now saying to yourself, “I’m gonna make a change,” while reviewing your policies on GPS tracking, here are some factors to consider.First, clearly disclose to employees that their location will be known to the employer during work hours, and require them to consent to tracking their location.Second, in light of Moreno, consider these points, in addition to those outlined in our previous post:Use a tracking program or software in an app format—Moreno was persuaded that the tracking app did not violate California Penal Code section 637.7, which makes unauthorized tracking a misdemeanor, because software, like an app, was not a physical “tracking device” within the meaning of the statue.Use software that associates the employee’s location with an ID number rather than more personal information.

Second, there are a number of states that limit when and how a GPS system can be installed. For example, in California there is no statute expressly limiting the installation of a GPS system on a company vehicle, but California Penal Code section 637.7 limits when a GPS system can be installed on someone else’s vehicle. However, if you obtain consent from the owner, lessor or lessee of the vehicle consents to the installation of the GPS device.Minnesota’s restriction on the installation of a GPS tracking device is similar, but broader in its application.

She sued for wrongful termination, invasion of privacy, unfair business practices, retaliation, and other claims, seeking over $500,000 in damages. This suit, privately settled, is likely not the last of its kind.An additional source of legal restriction on remote employee monitoring is California Penal Code section 637.7, which prohibits the use of “an electronic tracking device to determine the location or movement of a person” via a “vehicle or other moveable thing” unless “the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” So while an employer arguably can install GPS tracking on company-owned vehicles, and even on employee-owned vehicles used for work purposes (with advance consent as we’ve blogged previously), there is currently no such carve-out allowing employers to require GPS tracking through smart phones.

In those states with social media password protection laws, prohibiting an employer from even asking the employee for a password to a private account can make monitoring tricky. Other state laws may come into play, such as California Penal Code Section 637.7 which prohibits the use of electronic tracking devices to determine the location or movement of a person. Too much tracking might also give the employer information about an employee that it otherwise might not want to have, such as information that would disclose an employee’s protected characteristic –such asgender preference.

The California legislature in 1998 passed a Penal Code statute that governs GPS tracking. The statute, Cal. Penal Code § 637.7, prohibits collection of GPS data about employees: “No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.” The statute then, however, provides for an exception to this prohibition when consent is given: “This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.”