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December 05, 2011

Interesting Spin on GPS Use

TimeclockAs we await the U.S. Supreme Court's decision in the GPS tracking case, the lower courts continue to struggle with this issue. A recent decision from a New York Appellate Court has an interesting spin on the use of GPS tracking devices. 

The case is In The Matter of Michael A. Cunningham v. New York State Department of Labor. In Cunningham, a 20-year state employee (with a history of misconduct) was being investigated for taking unauthorized absences from work and falsifying time records. Previous attempted to follow the employee after he left work through traditional surveillance had failed, so the investigators obtained help from the New York Office of the Inspector General (“OIG”). The OIG, among other activities, placed a GPS on the employee’s car.  Information obtained from the GPS device helped the OIG to conclude that the employee had submitted false information about hours worked and travel.

The employee challenged his discipline, alleging that the use of the GPS device violated the New York Constitution. In 2009, the New York Court of Appeals had held held that, within the context of a criminal investigation, the New York Constitution generally prohibits the warrantless use of GPS tracking devices.  People v Weaver, 12 NY3d 433, 447 [2009]). The Weaver decision was after the tracking took place.

The employee, however, could not take advantage of this opinion. This is because, under New York law, searches conducted public employers of work-related misconduct is judged by the standard of reasonableness under all the circumstances. In addition, the court considered that the public employer “clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers’ monies.”

The use of the GPS device was approved by the court in this circumstance.  The court concluded:

"To establish a pattern of serious misconduct (i.e., repeatedly submitting false time records and not a mere isolated incident), it was necessary to obtain pertinent and credible information over a period of time. 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."

Important to the majority of the court seemed to be the fact that the GPS devices “were not constantly monitored” and were used only to obtain “information relevant to [the employee’s] location during work hours.” 

The dissent was not persuaded about the limited nature of the tracking.  The dissenters wrote:

"...the scope of its use was so broad and intrusive as to defy a finding of reasonableness. [The state’s] valid interest in [the employee’s] extended only to the hours of his workday, yet the device placed on [the employee’s] personal vehicle collected data 24 hours a day, seven days a week. [The employee’s] movements were tracked for over a month, including during a week-long family vacation."



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