Quirky Question #246, iKnow where your iPad is

Question:

Our California company intends to provide iPads to all of our sales employees, but to make sure we can locate the iPads if they are lost or stolen, we plan to use the iPads’ GPS capabilities to track their locations.  As an added bonus, we’ll also be able to track the sales employees themselves.  Any concerns with this plan?

Answer: By Joel O’Malley and Jessica Linehan

Joe O'Malley

Joe O’Malley

Jessica Linehan

Jessica Linehan

Recent Supreme Court decisions on GPS tracking by law enforcement officials has put GPS tracking of employees on the minds of many employers.  When it comes to privacy rights – especially for California employees – the best advice typically is to obtain an ironclad consent to what would otherwise be a violation, so that the employee cannot later make a claim that her rights were violated.  When it comes to GPS tracking of items other than vehicles, however, California law appears not to allow for any such consent exception.

The California legislature in 1998 passed a Penal Code statute that governs GPS tracking.  The statute, Cal. Penal Code § 637.7, prohibits collection of GPS data about employees:  “No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.”  The statute then, however, provides for an exception to this prohibition when consent is given:  “This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.”  As you can see, the exception is specifically limited to GPS devices that are attached to a vehicle.  The statute’s definition of “electronic tracking device” makes this focus on vehicles even more clear, by defining that term as “any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals.”  Thus, the plain reading of the statute suggests that GPS tracking of items that are not vehicles or “other movable things” is prohibited, even with the consent of the owner or user of the item being tracked.

The legislative history of the statute muddies the water a bit.  That history suggests that the law was intended broadly to protect individuals from being subjected to GPS tracking without their knowledge – regardless the method.  See Section 1 of Stats. 1998, c. 449 (S.B.1667) (“The Legislature declares that electronic tracking of a person’s location without that person’s knowledge violates that person’s reasonable expectation of privacy.”).  Unfortunately, no California court has addressed this question of the applicability of the law to objects other than vehicles.  Indeed, there are very few cases that even cite the law.  And while this Penal Code statute does not itself provide for a way for aggrieved individuals to sue in civil court, other California causes of action (like a claim under the Unfair Competition Law or one for termination in violation of public policy) may provide that vehicle (so to speak).

So, the punch line from all of this law is that an employer’s GPS tracking of an employee’s iPad, even when the iPad is provided by the employer, is prohibited.  This appears to be true even if the employee consents to the tracking.  And while the statute creating this prohibition appears in the criminal code and does not provide a way for private employees to sue for its violation, clever attorneys can likely find a way to bootstrap the statute into a civil lawsuit.

GPS tracking of employees creates additional concerns as well.  Probably of most critical note, in the wage-and-hour context at least one court has relied upon the existence of GPS data to conclude that employers knew or should have known that employees were engaged in off-the-clock work or were missing meal and rest breaks, in violation of federal and state law.  In Frew v. Tolt Technologies Service Group, 2010 WL 557940 (M.D. Fla. Feb 11, 2010), the employer moved for summary judgment on the employee’s unpaid overtime claim, arguing that the plaintiff field service technician could not show how many hours of overtime were actually worked.  The court held that because the employer frequently viewed GPS reports that tracked the location of employees’ service trucks and reviewed employees’ cell phone records (but not GPS on the phones), the plaintiff had a right to go to trial over whether the employer should have known he was working through his unpaid lunch periods.

Given the uncertainty surrounding GPS monitoring of non-vehicles in California and the risks of the GPS data being used against employers, caution should be exercised before considering GPS tracking of employees.  While a robust consent and waiver agreement is a great idea, that might not provide full protection against a claim by a California employee.  Employers should consider these risks and, of course, consult legal counsel before instituting any GPS tracking program.

Jessica Linehan

About Jessica Linehan

Jessica is a Partner in the Labor and Employment group. She advises clients on a wide variety of matters including employment agreements, non-competition issues, wage and hour compliance, reasonable accommodation......

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