Moreno v. S.F. Bay Area Rapid Transit District

Seyfarth Synopsis: When choosing a GPS location tracking app, California employers must consider several factors to see if the app unduly infringes on employee privacy. Let some references to popular music be your guide.

It’s As Easy As ABC

Today’s GPS technology makes it easy for employers to track the location of employees. And an employer need not be a smooth criminal to do so.

While it may just be human nature, many employers want to know where their employees are during work hours. Several companies offer GPS tracking apps and devices that enable employers to track employees—whether they travel to the corner of the sky or the heartbreak hotel. These programs can not only track the location of employees but also link this information to payroll and timesheet data. Employers might thus increase route efficiency in deliveries or streamline project management.

But before an employer says “I want to rock with you” to any of these companies, the employer should consider the legal implications of tracking employee locations.

The Law Is Not Black Or White

As noted in previous posts, an employer’s lawful ability to track employees hinges on whether the employer is infringing on employee privacy rights. Article I, Section I of the California Constitution states that “all people” have an inalienable right to privacy, and California peculiarly applies this constitutional protection to private employment.

While California law emphasizes privacy, the issue as it relates to tracking employee locations has not been heavily litigated. Thus, there is no specific roadmap for employers.

Moreno v. S.F. Bay Area Rapid Transit District, though not an employment case, provides guidance on how a GPS tracking system implicates personal privacy. In Moreno, the plaintiff claimed that a transit company violated her right to privacy through the tracking abilities of its cellphone app. The app tracked user location so that if a rider reported something amiss on the train, operators could identify where the suspicious activity was occurring.

Moreno made two rulings relevant here: (1) A link to a privacy policy consenting to being tracked when installing an app does not suffice to inform users that their location would be tracked. (2) A user’s privacy is not so much at risk when the app tracks an ID number rather than the user’s personal identifying information.

Don’t Get Too Futuristic

Just as in Michael’s worst video—Scream—things can go terribly wrong if you try to get too futuristic. Employers should refrain from requiring employees to implant subcutaneous chips to track their whereabouts or other information. Requiring a chip implant is something that might appeal to every parent of a wayward teenager (is there any other kind?), but this measure in the employment context is expressly prohibited by statute, with steep fines for noncompliance.

Takeaways When Looking at the Man In The Mirror

If you are now saying to yourself, “I’m gonna make a change,” while reviewing your policies on GPS tracking, here are some factors to consider.

First, clearly disclose to employees that their location will be known to the employer during work hours, and require them to consent to tracking their location.

Second, in light of Moreno, consider these points, in addition to those outlined in our previous post:

  • Use a tracking program or software in an app format—Moreno was persuaded that the tracking app did not violate California Penal Code section 637.7, which makes unauthorized tracking a misdemeanor, because software, like an app, was not a physical “tracking device” within the meaning of the statue.
  • Use software that associates the employee’s location with an ID number rather than more personal information.
  • Provide employees notice that the app will track their location.
  • Require employees to consent to the app tracking their location.
  • Track locations only during work hours. Even if your people are workin’ day and night, make sure the app stops tracking locations during non-work hours, including breaks.
  • If you’re a public employer, comply with the Cellular Communications Interception Act. Gov’t Code § 53166. The Act requires “[e]very local agency that operates cellular communications interception technology” to maintain reasonable security procedures and implement a privacy policy to insure that the information obtained remains private.

Workplace Solution: Because the issues surrounding this area of law are in flux, employers should be deliberate when enacting a GPS tracking policy and continually revisit it to maintain compliance. We will continue to monitor developments in this area and update our readers. In the meantime, if you have any questions, please contact your favorite Seyfarth attorney.

Edited By: Coby Turner