May 6, 2014
As the legal system continues to play catch up with technological developments, particularly current surveillance capabilities, public employers often find themselves embroiled in disputes over the use of technology to monitor the activities of their employees.
Two cases — decided a year apart in different jurisdictions — highlight certain limitations that come with an employer’s managerial prerogative to install new technology to monitor employee behavior for disciplinary purposes.
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In collective bargaining states, the employer may have to consider whether the new technology creates a severable impact on working conditions. In addition, privacy and constitutional considerations impose certain restrictions on the warrantless monitoring of employees outside business hours.
A recent decision by the Pennsylvania Labor Relations Board illustrates why public employers must bargain the disciplinary impact of installing tracking devices on their agency vehicles, even though the installation of the devices is a managerial prerogative.
In Pennsylvania Liquor Enforcement Association v. Commonwealth of Pennsylvania State Police Bureau of Liquor Control Enforcement, 45 PLRB 99 (PLRB 2014), the PLRB examined an employer’s bargaining obligation with respect to discipline imposed for “erratic driving” information transmitted through Automatic Vehicle Locators (AVLs) installed on the take-home vehicles of the employer’s Liquor Enforcement Officers (LEOs).
AVLs track the GPS location of a vehicle, and have the ability to monitor — in real time — the speed, and driving habits of the driver. The employer installed the devices to address concerns about LEO accountability with regard to their on-duty activities: conducting undercover and uniformed investigations of alcohol offenses in licensed establishments.
Although the Board acknowledged the installation was a managerial prerogative, it affirmed the hearing examiner’s determination that the state employer had an obligation to bargain the impact of imposing discipline based on the AVL data. The Board explained that discipline for “erratic driving” represented a change in employees’ working conditions, and that this change constituted a severable impact on working conditions that was mandatorily negotiable under the Public Employee Relations Act.
The New York high court on GPS devices
A year earlier, the New York Court of Appeals — the state’s highest court — tackled the constitutional and privacy concerns associated with the attachment of a global positioning system device on the personal vehicle of a public employee suspected of time theft.
In Cunningham v. New York State Department of Labor, 46 PERB 7504 (Y.Y.2013), a majority of the court applied the workplace exception in determining that the state employer lawfully attached the GPS device without seeking a warrant. The majority found that the employer had a reasonable suspicion the employee was submitting false time reports.
But at the same time, the majority went on to conclude that the GPS search was unreasonable in its scope.
Although acknowledging the employer’s legitimate interest in tracking the employee’s whereabouts, the majority said the employer failed to take sufficient steps to avoid tracking the employee outside of business hours and during periods when it knew the employee was on vacation.
Therefore, the court suppressed GPS evidence on four of 11 disciplinary charges that relied on GPS tracking information during non-business hours.
The dissent said the warrantless search was unconstitutional under both the New York and U.S. Constitution, because it extended to the employee’s personal vehicle, rather than areas physically inside his workplace, and thus infringed on the government employee’s reasonable expectation of privacy.