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Tuesday, September 06, 2016

Installing Global Positioning System equipment in devices use by employees during work


Installing Global Positioning System equipment in devices use by employees during work
El-Nahal v. Yassky, USCA, 2nd Circuit, Docket #14-405

A New York City taxi driver, Hassan El-Nahal, sued the New York City Taxi and Limousine Commission (TLC) in federal district court alleging TLC had deprived him of his Fourth Amendment rights barring "unreasonable search" by mandating that all New York City taxicabs install "technology systems" equipped with Global Positioning System (GPS).*

El-Nahal alleged that the installation of such devices having tracking abilities amounted to a property-based search within meaning of United States v. Jones, 132 S. Ct. 945,** and that such a search violated his Fourth Amendment rights.

The district court granted TLC’s motion for summary judgment El-Nahal’s arguments and the Circuit Court of Appeals sustained the lower court’s ruling. The Circuit Court explained that there was no evidence in the record demonstrating that El-Nahal had any property interest in a taxi at the time he alleged “at the time of an alleged trespass or physical intrusion.” Accordingly, said the court, he failed to make a sufficient showing on an essential element of his property-based Fourth Amendment claim.

In Jones the Supreme Court held that police may not use GPS device to track suspects without a court order. The Court said that the government violated the Fourth Amendment, which protects individuals from unreasonable searches, when it affixed a global positioning [GPS] device to Antoine Jones’s car and tracked his movements continuously for a month. Significantly, the Court rejected the argument advanced by the United States that Jones had no “reason­able expectation of privacy.”

New York State’s Court of Appeals ruled that a warrantless installation of a GPS device to track an individual suspected of criminal activity was barred by New York State’s Constitution, citing People v Weaver, 12 NY3d 433.***

The Weaver court noted that Article 1, §12, of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."

In contrast, in Cunningham v NYS Dept. of Labor, 21 NY3d 515,**** the Court of Appeals, sustaining the decision of the Appellate Division, ruled that using a GPS device to gather evidence of employee misconduct to be used in an administrative disciplinary action was permitted.

The Labor Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. The appointing authority had alleged that the employee had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle.

In its opinion, the Appellate Division said although the GPS evidence gathered in Cunningham’s situation would have likely been excluded from a criminal trial under Weaver, the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law.

Citing McCormick, Evidence §173 [6th ed] [supp], the Appellate Division observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”. The test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

In Halpin v Klein, 62 AD3d 403,***** the employee was found guilty of administrative disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the GPS installed in his Department-issued cell phone.

PERB has also considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining. 

In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, PERB’s Administrative Law Judge dismissed a charge alleging that the County violated the Taylor Law by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate.

Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that the employees had to participate in record keeping, and that there was an interference with off-duty time were either inapplicable or had no factual basis. [See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08]

* The EL-NAHAL decision is posted on the Internet at:

** The Jones decision is posted on the Internet at:

*** The Weaver decision is posted on the Internet at:

**** The Cunningham decision is posted on the Appellate Division decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm and the Court of Appeals decision is posted on the Internet at:

***** The Halpin decision is posted on the Internet at: 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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