PERB gives green light on tracking employees using GPS technology On Board Online • August 10, 2009 “The closing of a door can bring blessed privacy and comfort – the opening, terror.” Andy Rooney, American Journalist By the New York State Association of School Attorneys If a school district wishes to require employees to use vehicles with global position system (GPS) technology or carry GPS-equipped cellphones, is that a mandatory subject of collective bargaining? The answer is no, based on a recent decisions issued by the New York State Public Employment Relations Board (PERB). PERB ruled that employees’ privacy concerns do not compromise a public employer’s right to unilaterally require and implement the use of GPS software, in various manifestations, in employer-owned equipment. PERB also ruled that public employers have discretion to determine what equipment is needed to fulfill their organizational missions and said GPS can be akin to a supervisor accompanying an employee during a workday. An employer’s ability to use GPS technology is not unbridled, however. PERB’s decisions suggest that an affirmative obligation to bargain could arise depending on the manner in which GPS technology is used. For instance, use of GPS features in cellular telephones might be viewed differently than GPS units installed in employer-owned vehicles, particularly if employees are required to keep the GPS-enabled cellphones with them at all times rather than just during working hours. In Matter of CSEA and County of Nassau, the county unilaterally required certain employees to carry GPS-enabled cellular telephones. Finding the county had not violated its obligation to bargain, PERB noted an employee could simply turn off a GPS-enabled telephone at the end of the workday, as well as during breaks. PERB said GPS would have no greater impact upon an employee’s privacy than that of a supervisor assigned to accompany a particular employee throughout the workday – an assignment well within an employer’s discretion. With respect to GPS-enabled vehicles, PERB recognized an employer’s right to know the location of its property in Matter of CSEA and Village of Hempstead. PERB upheld an employer’s unilateral decision to require employees to operate GPS-equipped vehicles. Seeing no restriction on employees’ use of their off-duty time, PERB found no obligation to bargain arises from this use of GPS. Issues involving employee privacy and bargaining requirements can be nuanced, however. For instance, in the Nassau County case, a union representing employees claimed that the obligation of employees to turn their phones off to protect their privacy during off hours unilaterally increased employees’ participation in record-keeping, requiring the employer to submit the subject to collective bargaining. PERB’s response hinged on the unique circumstances in Nassau County, where the employer had already required employees to keep a log of their workday activities. PERB concluded that the obligation to turn the phone off or on at different points during the day did not increase employees’ participation in recordkeeping. It remains to be seen, however, whether an obligation to bargain could arise in the absence of a requirement to keep a daily log or similar ministerial requirement. In both cases cited above, questions arose as to whether the routine recording of the movements of employees through GPS software could lead to actions to discipline employees for alleged misconduct, which also could have implications for collective bargaining. In both instances, PERB found it undisputed that public employers possess the managerial prerogative to unilaterally demand that employees use a certain type of equipment. It does not matter if the use of a specified type of equipment implicates discipline, PERB said – this circumstance does not create a bargaining obligation. Notably, the use of GPS-generated records in an employee disciplinary matter was recently affirmed by the Appellate Division of Supreme Court, First Department, in Halpin v. NYC Dept. of Educ. That case involved an employee who was found guilty of submitting falsified time cards and leaving work early on 63 occasions. As with the advent of any new technology, the scope and implications of the information generated from the use of GPS technology remains uncertain. For instance, “geo-fences” software enables an employer to generate a virtual “fence” around particular locations, such as a bar. A tracking chip in the GPS receiver can generate an e-mail to the employer should the GPS receiver cross the electronic fence. Does an employer’s unilateral right to use GPS technology extend to use of geo-fences? Or would that usage trigger an obligation to collectively bargain the subject? Furthermore, GPS technology has many applications in vehicles such as school buses. For instance, an employer could use GPS data to construct a detailed road history, including an accounting of each time the bus stops at a location and the date, time, and duration of the stop. Conceivably, such data could be used as a factor in employment decisions such as promotions, demotions or dismissals. The view of PERB and the courts on such uses of GPS technology is uncertain until the question is put to them. As new uses of GPS emerge, employees and their unions can be expected to challenge unilateral actions by employers to use this technology. Given the sensitivity of issues involving employee privacy, school districts should be cautious and deliberate in implementing this developing technology. Whether justified or not, GPS technology may have the effect of generating terror or at least concern in the minds of some employees. On the other hand, PERB has sided with employers in the first cases involving unilateral decisions to use GPS. Before authorizing purchases of GPS equipment, school boards should have an understanding of how the district plans to use the equipment and the legal implications of those uses. Ideally, GPS will be implemented in ways that help a district be a conscientious steward of public assets as well as be consistent with district goals of maintaining high morale and good employee relations. Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Douglas A. Spencer of the Guercio & Guercio law firm. |
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