Employers as well as police should heed the U.S. Supreme Court's ruling that the Fourth Amendment requires law enforcement officials to get a search warrant before using electronic technology to track suspects, legal experts said.
The high court's Jan. 23 decision in United States v. Jones, No. 10-1259, focused on the use of a Global Positioning System (GPS) device and other high-tech gadgets in criminal investigations.
But experts said the majority and two concurring opinions offer guidance to employers in a time when advances in technology have changed the face of the workplace.
Attorney Bradford A. LeHew of Fisher & Phillips LLP noted that the use of GPS devices is becoming more common in certain industries.
For example, delivery businesses may use the technology to devise more efficient routes, said LeHew, whose practice centers on employment discrimination cases.
LeHew said salespeople, recruiters and other employees whose work takes them outside the office may use GPS devices to find their way to appointments.
And employees use computers and mobile phones to send and receive e-mails, LeHew said.
LeHew said employers should take steps to shield themselves from possible legal hassles if they monitor their employees' use of technology.
Courts likely would hold that employees have no expectation of privacy when driving a company car or using other company equipment during work hours, LeHew said.
But he said employers should inform their employees anyway if they are tracking the employees' movements or checking the minutes they rack up on company-issued mobile phones.
"To avoid complaints or lawsuits filed by employees who have been monitored, it's important for employers to craft narrowly tailored policies regarding the electronic-monitoring capabilities that they have," LeHew said.
LeHew said such policies are particularly important if employers allow their employees to use company equipment when they are off the clock.
Employers should tell their employees how to disable the monitoring features on the equipment, LeHew said.
And he said employers should not use any information gathered during an employee's off hours if the employee does not disable the monitoring features.
"Where the employee is on personal time, the employer should not gather data on their whereabouts or activity," LeHew said.
Employers who gather such data take the risk of being accused of improperly using personal information to make work-related decisions, he said.
For example, information from GPS devices or e-mails could reveal that an employee attended services at a mosque, went to a union meeting or received treatment at a dialysis center or cancer hospital, LeHew said.
"Even though that knowledge may not be used to make an employment decision, it's still there," he said. "And if the employee discovers that the employer has that information, they could use that in a discrimination case."
He said employers also should not require their employees to check their e-mail at night and on weekends to avoid questions about whether the employees should be paid for that time.
LeHew said Supreme Court Justice Sonia M. Sotomayor in her concurring opinion in Jones did not tie the ruling to employment cases.
But Sotomayor discussed privacy issues stemming from the use of technology that could arise in employment cases, LeHew said.
And he said Sotomayor predicted these issues will ultimately land before the Supreme Court.
Attorney Adam J. Sheppard of Sheppard Law Firm P.C. also predicted that the high court will someday be examining when employer monitoring intrudes on an employee's privacy.
And Sheppard predicted the court will be building its rulings in part on City of Ontario, Calif. v. Quon. 130 S. Ct. 2619 (2010).
The plaintiff in Quon was a SWAT team member who used his police-issued pager device to send and receive personal as well as work-related text messages.
The officer, who said he had permission to use the pager for personal messages, reimbursed the police force for overage charges.
But the officer's supervisors later decided to check his messages and discovered that many were personal, including some that were sexually explicit.
The officer filed a suit that included a Fourth Amendment claim after he was disciplined for his use of the pager.
The Supreme Court decided the case on narrow grounds, but did say it was assuming that the officer had a reasonable expectation in his personal messages.
"Fourth Amendment advocates such as myself point to the Quon decision as a signal on how the court would rule if forced to squarely decide the issue of whether an employee had a reasonable expect of privacy in messages he sent and received on an employer-issued technological device," said Sheppard, a criminal defense attorney.
Sheppard said he would be pleased if the high court issued such a ruling.
"I think it would be a victory for the privacy protections embodied in the Fourth Amendment," he said.