Fired NY State Employee Sues For GPS Tracking Without Consent

Monitoring Employees With GPS Tracking Without Their Knowledge or Consent – Is It Legal?

Managing employees in the field has always been a challenge.  How do you know if employees are where they say they are? What if a customer calls to complain that a driver never showed up, but he swears he did. What is a manager to do?  Ths is where GPS tracking can offer huge benefits.

But inevitably ethical and legal issues have been raised about gps tracking aka Big Brother in the workplace. Is it OK to monitor an employee with a GPS tracking device without their knowledge or consent?

How far can the state government go in monitoring a mobile employee?

This question will be addressed by a mid-level appeals court in New York very soon in about 6 weeks. The lawsuit was filed by the New York Civil Liberties Union (NYCLU) against the state Labor Department, on behalf of  a fired state worker whose personal vehicle was being monitored with a GPS tracking device, without his knowledge or consent.

NYCLU believes the surveillance, which was done without a court warrant, violated state constitution protections against unreasonable search and seizure, and violated Mr. Cunningham’s privacy rights.

“GPS technology involves an unprecedented degree of government intrusion,” said Corey Stoughton, the NYCLU lawyer representing Michael Cunningham, a former state Department of Labor training manager.

The NYCLU says the GPS tracking went beyond what would normally be termed Cunningham’s work hours, since the device was on for 24 hours a day, seven days a week. They even tracked him on a multi-day family vacation. Mr. Cunningham became aware of the surveillance only a year after it was conducted when the state charged him with misconduct, citing evidence from the GPS tracking to show that he had claimed pay for hours he hadn’t worked. He was fired from his management job last year.

Cunningham’s battle with the agency, first reported in the Times Union in 2010, began years ago with his contention that he was punished for blowing the whistle on pressure placed on employees to attend a prayer breakfast sponsored by then-Gov. George Pataki. However, Department of Labor officials said Mr. Cunningham had filed improper time sheets.

Deputy Solicitor General Kate Nepveau said that the GPS tracking was “reasonable,” based on suspicions Cunningham was filing bogus records for work, including off-site meetings.

In 2009, New York’s top court ruled that police cannot place a GPS tracking system on a suspect’s vehicle without first obtaining a warrant. So naturally one would have to ask, why would the state government be allowed to track its employees with GPS without first obtaining consent from the employee?

On the other hand, Kate Nepveu, an assistant solicitor general, said the state realized the GPS tracking was intrusive, but Cunningham’s pattern of misconduct and the difficulty of constant in-person surveillance justified the technique. Cunningham’s claim that he worked odd hours at his job helped explain the weekend GPS tracking.

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