The U.S. Supreme Court will decide next term whether it is law enforcement’s warrantless placement of GPS devices on a suspect’s vehicle amounts to an unlawful search or seizure in violation of the Fourth Amendment. The Fifth Circuit has already authorized law enforcement’s use of this warrantless tactic. Similarly, a New Jersey court has blessed a spouse’s use of GPS tracking technology to gather evidence of her partner’s infidelity in preparations for a divorce proceeding.
One of the most frustrating human resources issues to manage is proving the case against an employee who is suspected of abusing intermittent FMLA. I’m not referring to the intermittent use of FMLA that is scheduled or reasonably anticipated. I’m talking about the unscheduled, unanticipated use of intermittent FMLA where the employee calls in shortly before the start of his scheduled shift (normally right before or after a weekend) to report an absence that is due to a serious health condition. This can occur frequently with certain respiratory conditions or migraine headaches. How can an employer confirm that the employee is really absent on these occasions for the serious health condition and not because the employee stayed up too late the night before?
The recent cases highlighting law enforcement’s use of GPS tracking technology (without a warrant) to track persons of interest made me start wondering about the legality of an employer’s use surrepticious use of GPS tracking technology on an employee who is suspected of intermittent FMLA abuse. A search of the reported cases did not uncover any cases where an employer use GPS technology to prove an employee fraudulent use of FMLA leave. However, there are several reported cases where employers have used private investigators to follow employees to prove a case of FMLA abuse. Is the placement of tracking technology much different than that so long as the potential tracking is disclosed to the employee in either handbooks or other notices? Would it make a difference if the GPS device is first placed on the employee’s vehicle when it is on public streets or even the employer’s parking lot? Would an employer have more latitude to track the employee if the employee is using an company-owned vehicle? Could an employer subpoena the GPS data file, in the defense of an FMLA case, from the employee’s Onstar system installed in the employee’s car? All of these questions are interesting and I confess I don’t readily know how a court would rule on these issues.
The legality of this conduct likely depends on the state where the tracking occurs (different states have different levels of privacy protection and some states –not Texas –have private causes of action for constitutional violations). The circumstances under which the GPS tracker was placed (i.e., was the employer able to place the device on a vehicle when it was on public or employer-owned property or on the employee’s property) and ownership of the vehicle (i.e,. company or employee owned) are also likely key questions. Employer disclosure of the practice, in either handbooks, policies or elsewhere, could also be important and perhaps determinative. Certainly, this practice is fraught with interesting potential legal issues.
If you have had any experiences where an employer used Onstar or GPS tracking technology to prove an employee’s abuse of FMLA leave, I’d like to hear about it in the comments.
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