Is GPS Tracking an Invasion of Privacy?

This post was written  by: Robert T. Szyba, Esq.

On November 8, 2011, the Supreme Court of the United States heard oral argument in United States v. Jones.[1] The case asks the Court to determine whether police, without a warrant, can affix a Global Positioning System (“GPS”) tracking device onto a suspect’s personal vehicle and track the suspect’s movements.[2] The U.S. Court of Appeals for the District of Columbia Circuit had previously decided that the government violated a suspect’s Fourth Amendment privacy interest when it used GPS technology to track the suspect continuously for a month.[3] The D.C. Circuit reasoned that, in the aggregate, the information gathered by the police over the course of a month of continual twenty-four hour tracking revealed much more about the suspect than just his travels, and thus due to the invasion into his privacy required a warrant under the Fourth Amendment.[4] The Supreme Court’s determination of the issues in this case are likely to provide guidance that may be relevant to how employers, both public and private, use GPS tracking of their employees.

 

One way employers track employees is by affixing a GPS receiver to a vehicle.[5] The receiver may allow the employer to easily locate the vehicle if there is an emergency or if the vehicle is stolen. This approach may be useful for law enforcement agencies and businesses that employ fleets of vehicles, like taxi companies, shipping companies, and messenger services. Alternately, an employer may issue a cellular telephone to an employee that contains a GPS receiver so that the employee’s movements may be tracked. Sprint, for example, offers Workforce Locator to its business customers to track employees using their cellular telephones.[6] Sprint advertises that Workforce Locator allows supervisors to locate and track field employees, send travel directions to handsets, and communicate with employees.[7]

 

GPS tracking of employees has been challenged in courts by employees in both the private sector and the public sector, but the employers’ use of GPS tracking has been upheld. [8] In Alexandre v. New York City Taxi & Limousine Commission, New York taxi drivers objected to the use of GPS tracking devises on their cabs because the devices would also track their movements while they were off duty.[9] The Southern District of New York upheld the use of the GPS devices because there were adequate safeguards to protect personal information, the vehicle owners had a strong interest in tracking and protecting the vehicles, and the taxi drivers did not have a legitimate expectation of privacy in their movements on public roads.[10]

 

Employing a similar mode of analysis, the court in Elgin v. St. Louis Coca-Cola Bottling Co. found that the employer did not violate employees’ privacy interests when it used GPS tracking devices to affixed to employees’ vehicles. [11] The court reasoned that the employees had a very limited privacy interest because the vehicles were in public view and the GPS devices only tracked the movements of the vehicles.[12]

 

In light of this backdrop, the Supreme Court’s approach to the privacy considerations involved with GPS searches, albeit in the criminal context, may provide insight into the Court’s broader considerations of privacy. This may influence employers’ decisions whether to use GPS tracking, employers’ policies on informing their workforce, and whether to get written consent from employees to have their movements tracked. In sum, even though it may not be intended, the Supreme Court’s decision may have a direct impact on employers and employees, and their use of GPS technology in the workplace.

Arizona Logistics Settles with EEOC

Ty Hyderally maintains law offices in two states. He litigates various cases dealing with employment law in New Jersey and New York. Tayeb Hyderally pursued a career in employment law because of the diversity it represented. He has successfully litigated many cases and also speaks on these issues to keep employees and employers aware of their rights and responsibilities. The broad scope of employment law brings up cases such as this one in which the EEOC sued Arizona Logistics.

Arizona Logistics, Inc. and its management company were doing business as DSI Arizona. They agreed to pay a settlement in a sexual harassment case where five former employees were subjected to sexual harassment in the work place.

The Regional Director, Mark Berault subjected female employees to offensive sexual harassment. EEOC alleged that he had sexually assaulted some of the women involved in the case as well as engaged in indecent exposure, and unwelcome touching of said individuals. He had made sexually explicit remarks to them as well as showing them photos of his private parts. Although DSI Arizona was informed about the sexually hostile work place the company did not take prompt or effective action.

The EEOC filed the suit against the company after first trying to reach a settlement before beginning litigation. There was eventually a settlement that was reached which required DSI Arizona and Norlyn to pay compensation to the victims in the amount of $175,000. The company is prohibited from ever rehiring Mark Berault and must immediately investigate any other complaints of sexual harassment. As part of the settlement, DSI Arizona also agreed to provide adequate training for all managers or supervisors on how to conduct an investigation when there are sexual harassment allegations. The company must also create and post a zero tolerance policy stating that sexual harassment of employees will not be tolerated. They also had to provide a letter of regret to each of those who were victimized in this case.

EEOC Regional Attorney Mary J O’Neill stated about this case, “This was an outrageous case of sexual harassment involving a supervisor who preyed upon vulnerable female employees, subjecting them to some of the most extreme forms of sexual harassment. We hope this settlement sends a message to employers that the EEOC will act to ensure compliance with the law.”

The EEOC is the organization responsible for enforcing employment discrimination laws.

Faragher V Boca Raton – Employment Law Cases

There are many different aspects to employment law; and just as many facets to discriminatory practices. Employment lawyers have to stay current on the many changes these laws undergo as rulings set the precedent for future cases. Cases like Faragher v. Boca Raton are the types of cases that draw many lawyers into studying employment law to begin with. The many transformations that NJ employment law undergoes is what drew Ty Hyderally to the field to being with. This is one of the types of cases that helps keep employment law interesting.

In 1998 the United States Supreme Court heard and decided Faragher v. Boca Raton. This case set the precedent for qualifying those circumstances for which employers could be held liable for an employee whom they have placed in a supervisory position. The company can be held liable if the supervisory employee creates a hostile work environment for workers under them.

Faragher and several other workers alleged that their supervisors had created a sexually hostile environment which included inappropriate touching which was unsolicited. The supervisors also spoke about women in general using offensive terms. Faragher alleged that the supervisors specifically told her that she should date him, or clean toilets for a year. There were many such instances cited. Although another female worker had brought the instances to the attention of the city, the hiring party, no actions had been taken.

The defense tried to say that it was a personal issue with the supervisors and had nothing to do with their employment. And they made the point that their views were not necessarily those of the employer. Another point was that Faragher’s job or position was not threatened and therefore it did not qualify as “harassment.” The city was unaware and they proposed that the City did not have a need to know about the situation. This was based on the fact that the incidents were spaced out over a long period of time and in a remote facility. The final point was that if it was a more serious issue, Faragher would have reported it sooner to the proper authorities.

Faragher felt like the situation was used to help the supervisors carry out the harassment. She maintained that the supervisors tried to use their position of authority to try to demean workers while making offensive statements. However, some felt that the city should not be the one responsible for ill actions of their employees. Faragher’s defense stated that since the offenses occurred on the job site while she was working for the city they are indeed the ones who should be held responsible.

The 7-2 opinion of the court determined that the City was responsible for the actions of their employee’s actions. This finding was based on the Civil Rights Act of 1964. Therefore the City was finally charged with an act of discrimination caused by a supervisor. This set the precedent for other similar cases where an employer is held responsible for the discriminatory practices of an individual that the administration placed in a leadership or supervisory position.

 

Ellerth v Burlington Industries (Employment Law Cases)

Discrimination and employment law is undergoing constant change. The cases heard before the Supreme Court each year increase as well as set the precedent for further similar cases. The wide variety of the ever changing world of employment law is what drew Attorney Tayeb Hyderally to pursue the area of law. Mr. Hyderally is an expert on employment law on the national and local levels. He has many years of successful litigation in employment law in the New Jersey area. There are many cases such as Ellerth v Burlington Industries which define liability in sexual harassment cases. Such cases help to define laws and provide clarity.

Ellerth v Burlington Industries

Kimberly Ellerth was employed by Burlington from March 1993 to May of 1994. Her immediate supervisor, Theodore Slowik subjected her to harassing comments, acts and also issued threats of retaliation if she did not submit.  He suggested that he could make her life at work miserable or pleasurable based on her ability to gratify him. He made other solicitations to which she would not submit.

Mr. Slowik repeatedly made remarks concerning women’s bodies, including Ms. Ellerth’s. He subjected her to unsolicited bodily contact and many offensive jokes. Before he refused to authorize a special project for a customer of Ms. Ellerth he asked, “Are you wearing shorter skirts yet Kim, because it would make your job a whole heck of a lot easier?” She resigned shortly after this incident. She also reported the incidents to Slowik’s supervisors informing them that she had resigned because of his harassment. She did not report it while she was still employed because she feared retaliation.

When Ms. Ellerth filed the Title VII action in the District Court, they made a judgment for Burlington stating that they were not liable for sexual harassment. However, upon appeal, the US Court of Appeal reversed the decision of the District Court. They found Burlington liable for the sexual harassment under Title VII.