Today, the Oregon Court of Appeals issued a decision addressing a former employee’s claim for invasion of privacy arising from the installation, without his knowledge, of a GPS device on his vehicle. The employee worked in finance for a car dealership and was terminated after he violated his employer’s prohibition on weapons in the workplace and the employer determined that he presented a security threat to the company and his supervisor. As part of the employee’s separation from employment, he was permitted to lease his company vehicle free of charge. After the employee was terminated, corporate security installed a GPS tracking device on the vehicle when the vehicle was being serviced at the dealership, and set up geo-fences across public roadways leading to the company’s office and the supervisor’s residence. The GPS was programmed to alert security if the vehicle crossed one of the geo-fences.
The former employee discovered the GPS device and sued for invasion of privacy. The lower court found that despite having installed the device, because no one actually accessed or monitored the data, there was no invasion of privacy. The Court of Appeals disagreed and found that there were issues of fact with respect to each of the elements of a claim for invasion of privacy, which are: (i) an intentional intrusion, physical or otherwise, (ii) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (iii) which would be highly offensive to a reasonable person.
With respect to the last element, the Court made clear that “[t]he case before us is not about the reasonableness of an employer’s HR process designed to protect its workforce from internal safety threats,” and found that a jury might find that covert placement of the GPS was highly offensive because had “TFS reported its ongoing safety concerns to the police at that point, a warrant would have been necessary before officers could place any sort of tracking device on plaintiff’s truck.”
The take away from this case is that monitoring the location of former employees must be approached differently from monitoring the location of current employees. It is also a reminder that if you want to monitor employees by installing GPS devices or other tracking software on company-owned vehicles, equipment and devices, you should have a policy that expressly notifies employees that the company has a right to monitor the location of the company’s vehicles, equipment, and devices, and that employees should have no expectation of privacy while using company property.