Privacy Issues in the Workplace

prohibited employees audio and/or video recordings in company meetings without prior approval and also prohibited recording conversations with a tape recorder or other recording device unless the employee received prior approval from store or facility leadership. The Board found that the rules, while not expressly prohibiting employees from engaging in protected activities, could be reasonably construed by employees to prohibit concerted protected activity. This is because there are many situations where an audio and/or video recording may be used to promote mutual aid or protection such as recording picketing, documenting unsafe workplace equipment, or documenting the inconsistent application of workplace rules. Therefore, the rules were required to be rescinding. While the NLRB decision is not binding on California public agencies, PERB often uses decisions issued by the NLRB when interpreting issues arising in the public sector and thus it is important to be aware of how the NLRB is interpreting these issues. I. T RACKING D EVICES Various tracking devices have entered the market: Radio Frequency Identification (RFID), Global Positioning Systems (GPS), and Event Data Recorders (EDR). These devices are available to private individuals for their personal use. For example, cellular telephone companies are now providing GPS as part of their services. However, employers should proceed with caution in using these technologies. Generally, individuals in California are prohibited under Penal Code section 637.7 from using electronic tracking devices to determine the location or movement of a person. 492 An exception exists that allows registered owners, lessors, or lessees of vehicles to use electronic tracking devices to track their vehicles. 493 In other words, if the agency owns or leases a vehicle, that agency may use GPS, or similar electronic tracking devices, to monitor the location or movement of its employees. An exception also applies to the lawful use of a tracking device by a law enforcement agency. 494 In United States v. Jones , the United States Supreme Court held that the government's use of a GPS device, without a warrant, during a criminal investigation, to monitor a vehicles movement violated the Fourth Amendment to the U.S. Constitution 495 “Telematics” refers to sending, storing and receiving information through telecommunication devices. 496 Telematics once meant the merging of computers and telecommunications. 497 Today, the term “telematics” more commonly refers to automation in automobiles, including integrated hands-free cell phones, GPS navigation, wireless communications, and automated driving assistance systems, including General Motor’s OnStar system. 498 Vehicle telematics may be used to track and monitor a vehicle or a fleet of vehicles, recover stolen vehicles, provide automatic collision notification and provide in-vehicle early warning prevention alerts. 499 Additionally, built-in vehicle telematics systems can be used to identify electronic or vehicle maintenance problems and provide information to the manufacturer and owner. 500

While a public agency is allowed to track the use of vehicles it owns or leases, it should implement this technology only where it has a legitimate business reason for doing so, and in a

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 150