Digital License Plates – A Privacy Nightmare for Employers

Fox Rothschild LLP

Fox Rothschild LLP

On September 29, 2022, Governor Newsome signed AB 984 into law, allowing for digital license plates (i.e. “alternative devices”). The futuristic plates can display different messages in emergency situations and have built in GPS [pretty cool!]. But, employers beware. The license plates are a privacy nightmare.

Employers may only “monitor” employees using the license plates if it is “strictly necessary” for the performance of the employee’s duties. The limitation includes tracking, watching, listening to, or otherwise surveilling the employee. If an employer chooses to monitor employees’ whereabouts using digital plates, it must first provide the employee with a comprehensive notice. The notice requires, at minimum, the following disclosures:

  1. A description of the specific activities that will be monitored.
  2. A description of the worker data that will be collected as a part of the monitoring.
  3. A notification of whether the data gathered through monitoring will be used to make or inform any employment-related decisions, including, but not limited to, disciplinary and termination decisions, and, if so, how, including any associated benchmarks.
  4. A description of the vendors or other third parties, if any, to which information collected through monitoring will be disclosed or transferred. The description shall include the name of the vendor or third party and the purpose for the data transfer.
  5. A description of the organizational positions that are authorized to access the data gathered through the alternative device.
  6. A description of the dates, times, and frequency that the monitoring will occur.
  7. A description of where the data will be stored and the length of time it will be retained.
  8. A notification of the employee’s right to disable monitoring, including vehicle location technology, outside of work hours.

Using digital plates to track employees also implicates a number of [other] privacy laws, including obligations on employers for handling, storing, and conveying data retrieved from the plates.  

The new law also prohibits retaliating against employees for removing or disabling monitoring devices outside of work hours.

Certain fleet and commercial vehicles are excluded from this new law.

An employer who violates this law is subject to a civil penalty of two hundred fifty dollars ($250) for each employee for an initial violation and one thousand dollars ($1,000) for each employee, for each subsequent violation, for each day the monitoring occurs without proper notice. The Labor Commissioner may issue citations for any such violations.

Practical Tips

Weigh the cost-benefit of using digital license plates. Convenient? Yes. Cool? Absolutely. But, privacy concerns (including data requirements), the potential civil penalties at stake, and risk that the Labor Commissioner will find tracking was not “strictly necessary” probably outweigh the benefits for most employers. Employers who wish to use digital plates should revise their employee handbooks to include the required notice. Employers should also require employees to sign a separate written notice prior to monitoring them using the digital plates. 

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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