Privacy Issues in the Workplace

Generally, individuals in California are prohibited under Penal Code section 637.7 from using electronic tracking devices to determine the location or movement of a person. 495 An exception exists that allows registered owners, lessors, or lessees of vehicles to use electronic tracking devices to track their vehicles. 496 In other words, if the agency owns or leases a vehicle, that agency may use GPS, or similar electronic tracking devices, to monitor the location or movement of its employees. An exception also applies to the lawful use of a tracking device by a law enforcement agency. 497 In United States v. Jones , the United States Supreme Court held that the government's use of a GPS device, without a warrant, during a criminal investigation, to monitor a vehicles movement violated the Fourth Amendment to the U.S. Constitution 498 “Telematics” refers to sending, storing and receiving information through telecommunication devices. 499 Telematics once meant the merging of computers and telecommunications. 500 Today, the term “telematics” more commonly refers to automation in automobiles, including integrated hands-free cell phones, GPS navigation, wireless communications, and automated driving assistance systems, including General Motor’s OnStar system. 501 Vehicle telematics may be used to track and monitor a vehicle or a fleet of vehicles, recover stolen vehicles, provide automatic collision notification and provide in-vehicle early warning prevention alerts. 502 Additionally, built-in vehicle telematics systems can be used to identify electronic or vehicle maintenance problems and provide information to the manufacturer and owner. 503 While a public agency is allowed to track the use of vehicles it owns or leases, it should implement this technology only where it has a legitimate business reason for doing so, and in a manner that puts employees on notice that they will be monitored. This should help the public agency avoid any arguments by employees that it is violating their privacy rights. Public agency employers should implement written policies that inform employees that their use of the agency vehicle will be monitored. The written policy should also discuss some of the business reasons for monitoring employees, such as measuring productivity, locating stolen vehicles, providing aid to vehicles that break down, or ensuring that employees are following their routes or assignments. Disciplinary actions by employers that have a “significant effect on the wages, hours and other terms of the conditions of employment” are subject to the mandatory bargaining requirements of the Meyers-Milias-Brown Act. 504 Therefore, employee discipline would likely be subject to mandatory bargaining to the extent it results from information obtained via tracking technology on agency-owned or leased vehicles, including discipline for misuse of the equipment, inappropriate use of time, and speeding. 505

While GPS tracking is now widely available through cellular telephones, employers should not use it. The Penal Code prohibits such tracking,

“No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.” 506

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 158