Does the Supreme Court's GPS/Search Decision Mean Anything for Employers?

Some things jumped out at me right away from me Supreme Court's decision in United States v. Jones.  The first is that the press basically got the case wrong-Jones does not stand for the proposition that a warrant is required before the police can put a GPS device in your car and monitor you remotely.  In fact, the Court's only holding in the case (that is, something voted by a majority of the Justices) was a simpler result, namely that placing a GPS tracking device on a vehicle is a "search" within the meaning of the Fourth Amendment.

That doesn't mean that a warrant is required, nor does it even mean that probable cause is required. But it's clear from the opinion that four, and perhaps five of the justices, would hold that long-term monitoring of a vehicle (how long would probably be dependent on the facts of the particular case) violates a reasonable expectation of privacy, and likely would require a warrant.

On the other hand, short-term monitoring of the GPS device, while it is a search, might not require a warrant. In fact, the warrant requirement for a short term monitoring revolves around whether the government has to get a warrant to install the device in the first place. If the installation requires a warrant, then the government's right to monitor the device without a warrant becomes moot.

What does the Court's jumbled opinion mean for employers that engage in GPS or other remote monitoring of their vehicles?  Where monitoring is a general aspect of the job, e.g., with delivery vehicles that are GPS equipped, or workers who travel with company provided, and the GPS enabled, smartphones, things shouldn't change. There is no reasonable expectation of privacy (which is the initial standard by which most state laws assess whether an employer goes too far in watching its workforce) in a situation where an employee using a company provided vehicle or phone is aware of the GPS tracking. But in situations where employers surreptitiously use tracking devices, the decision hints at a red flag.

For example, some employers use private investigators to surreptitiously observe employees who are out on workers compensation leave, to see if they are actually as injured as they claim. These observations frequently involve the placement of a tracking device on an absent employee's vehicle so that the investigator doesn't have to maintain 24-hour coverage to see the employee doing something inconsistent with his workers compensation injury status. Depending on the circumstances, both the placement and the monitoring of such device would likely intrude on employee's reasonable expectation of privacy, as delineated in Jones.

Moreover, the decision has been widely misreported in the press, and raises the awareness and expectation of employees with respect to their right to privacy. Under these circumstances, an employer should look carefully at state law before it or its agents decide to make use of GPS assisted oversight without an employee's knowledge.

UPDATE:  Here's a brief discussion from LawBlog on the application to private citizens.

Obama's Union Busting Chief of Staff

I love this.  So where's the anger and outrage at the fact that the President's new Chief of Staff engaged in "“[e]very single ruthless tactic from the playbook of union-busting" when he was the NYU COO and executive in charge of defeating the unionization efforts of the graduate students?

Not that I think Mr. Lew did anything wrong at NYU.  I just enjoy pointing out the double standard--keep it in mind when the next Republican administration appoints some people accused of being worker unfriendly.

I Guess He's Out of the Running for Employee of the Month

Although it does indicate a sort of Jack Sparrow persona to order dinner for yourself and your date while your ship is actually sinking.

I keep waiting for some Carnival Cruise spokesman (which owns the Costa Concordia) to appear and try to start spinning this mess, but perhaps the company is better off saying nothing. The revelations from the accident are far outpacing the ability of average corporate communications types to respond.

2M Vacation Hours-Another Reason European Economies Are Unsustainable.

As you might be aware, one of the ways that the French decided to deal with unemployment, and maintain a certain je ne sais quoi type of lifestyle, was to limit their work week to 35 hours. This was a universal limitation, but it was also written with a number of loopholes so that business can actually keep functioning. But for employees covered by the limitation, there are all kinds of disincentives that kick in for the company if the employees end up working more than a 35 hour week. One of those disincentives is that the employees receive paid time off if they work longer hours. So for every hour over 35 employees work in a week, they get at least an hour of paid time off.

Now, here in the colonies, we can fire people if, after we tell them not to, they work sufficiently long hours that they trigger overtime obligations.  We would not have a problem with people voluntarily working more than 35 hours to get the increased vacation benefit.  Not so the French. How bad can it get? Well, at one French hospital alone, the employees have accumulated more than 2 million hours in paid vacation time.  That's in addition to the annual five weeks off that they all receive as a matter of course.

That's a lot of paid vacation. In fact, it's 5475 years of vacation time. The hospital has approximately 450 people working for it, according to its website. So each one of them, on average, is entitled to somewhat more than 10 years of paid vacation. Let's hope the hospital staff doesn't decide to take it all at once.  Although that would be an appropriate and fitting penalty for the promoters of this legislation demonstrating such total ignorance of human nature.

Paterno's Failure

And so now we know that Penn State coach Joe Paterno, after getting a credible report of horrific behavior from one of his assistants, simply kicked it up the management food chain and then stopped thinking about it.  He never acted like someone who thought, really thought, about what would happen if the allegations were true, or if his legal superiors (but who were not the keepers of his legacy) treated this report the way he did.

I still don't get it.  You can't be the head coach of a program that prides itself on above board, upright operation, and turn something like this over to bureaucrats without a second thought.  By the time this event happened, Penn State football was a brand, and so was Paterno.  He abandoned both.

This is a lesson that needs to be reinforced to senior management everywhere--just being legal isn't enough sometimes.  Sometimes you have to take responsibility for the organization's character and well being.  Amazingly, no one thought about what the revelation that a potential pedophile operated within the halls of the Penn State athletic department would mean, to the kids affected, to the organization, or to various individuals on the periphery.  This was a monumental failure of judgement, character, ethics, fortitude, and just about every other quality we believe is essential to running an effective business.  A failure at all levels, too.

UPDATE:  And so the whole miserable house of cards that was the Paterno empire comes crashing down.  Again, what is evident is that the money, prestige, and political influence of big time college athletics simply overwhelmed the values and judgment of the people running the school.  This affair is another lesson that power corrupts, and allowing one individual to amass so much influence is a recipe for disaster.  On occasion I deal with clients that have the misfortune to have created people like Paterno in his last few years.  Invariably, I counsel them to jettison the employee at first opportunity.  Otherwise, the entire organization becomes infected with the moral decay emanating from the power center.
I'll hope this lesson is taken seriously in organizations across the country, but I doubt it will be more than a year or two before we read of some similar ethical failure.

10 Ways to Get Fired

Just in case you had forgotten.

Nothing to Do with Employment Law

Unless you work in a pizzeria and/or love leftover pizza. Reheating pizza has always been a total disaster for me--I usually just eat the stuff cold.  Then I saw this on Sobering Thoughts and thought, "Genius."

Bon appetit.