Using GPS to Track Employee for a Month OK
The use of information obtained by a warrantless-tracking of a New York state employee with a GPS device on his private car, even while he was on a week’s vacation, was approved by the state’s appellate court.
The case involved an employee who was fired because of a pattern of taking unauthorized absences from work as well as falsifying time records. Initially, the department where he worked attempted to tail him, but the effort was unsuccessful. Instead, the state Office of Inspector General placed a global positioning system on his private vehicle for a 30-day period. The Inspector General did not obtain a warrant for the device.
The appellate court recognized that if the information obtained from the GPS device had been offered in a criminal trial, the evidence likely would have been excluded as being an unlawful search and seizure. Because the firing occurred as part of an administrative hearing, the use of the GPS device “is judged by the standard of reasonableness under all circumstances, both as to the inception and scope of the intrusion.”
The court found that the GPS device was not constantly monitored but rather “information relevant to petitioner’s location during work hours was extracted.” As to the length of time that the GPS was attached to the car, the court said, “Obtaining such information for one month was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonwork-related ventures during work hours.”
In a dissent, two justices agreed that the use of the GPS at its inception was warranted. “[H]owever, the scope of its use was so broad and intrusive as to defy a finding of reasonableness. Respondent’s valid interest in petitioner’s whereabouts extended only to the hours of his workday, yet the device placed on petitioner’s personal vehicle collected data 24 hours a day, seven days a week. Petitioner’s movements were tracked for over a month, including during a week-long family vacation.”
Cunningham v. New York State Department of Labor, N.Y. Sup. Ct., Appellate Division, Third Department, No. 512036, Issue Nov. 23, 2011.