In Cunningham v. New York State Department of Labor, 2013 NY Slip Op 4838 (June 27, 2013), the New York Court of Appeals determined that the state's use of a global positioning system (GPS) device to track and monitor employees during non-working hours without a warrant (including nights, weekends and vacation days) constituted an unreasonable invasion of privacy. As a result of this decision, public employers should use caution when monitoring and tracking off-duty employee activity.
Cunningham involved the discipline and termination of a state employee for unauthorized absences and falsifying time sheets. The disciplinary investigation included data from a GPS device that had been attached to the employee's personal vehicle without his knowledge or consent. In addition, no search warrant had been obtained for the search of the employee's vehicle. The GPS device recorded all of the vehicle's movements for a month.
The state employee challenged his termination, arguing that the placement of a GPS device on his personal vehicle without a search warrant constituted an invasion of privacy and an illegal search and seizure under the Fourth Amendment of the US Constitution.
A lower court ruled that the state had established the use of a GPS device to investigate workplace misconduct as reasonable under the circumstances, based on the employee's prior disciplinary history and the failure of other, less-intrusive investigation tactics.
On appeal, the New York Court of Appeals recognized that warrantless workplace searches to investigate employee misconduct do not violate the Fourth Amendment if: (1) the search is legally justifiable; and (2) the search is reasonable in scope and not overly intrusive. The court determined that the tracking of the state employee's movements in either an employer-provided vehicle or a personal vehicle during the workday was reasonable. Therefore, this search could have fallen within the workplace exception to the warrant requirement.
However, the court ruled that the use of a GPS device outside of business hours was unreasonable and overly intrusive. The court reasoned that when a public employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable.
As a result, the lower court's decision was reversed and the case will be referred to the state Commissioner of Labor for further proceedings.