Earlier this month, the Connecticut Supreme Court unanimously held that a municipal government violated a state statute regulating electronic monitoring when it secretly installed GPS tracking devices in city-owned automobiles used by fire inspectors. The devices were installed to reconcile the whereabouts of the inspectors with their inspection schedules.
Although the statute upon which this action was based has no counterpart in the Carolinas, both North and South Carolina recognize limited privacy rights for employees under common law. Would similar tracking by Carolinas employers provide the basis for a breach of privacy claim by their employees?
Under current interpretations of the privacy tort, this appears unlikely. For example, North and South Carolina state courts have held that employers have the right to monitor the use of their electronic communications systems. While these cases recommend that such monitoring rights be disclosed to employees in advance, failure to make such disclosure will not lead to a cause of action for violation of privacy where the employee is clearly using the employer's computer or other systems. These decisions could lead to a similar conclusion that employers have the right to monitor the whereabouts of their vehicles, with or without the employee's knowledge. Employee location during the working day may not be considered a protectable privacy right.
Through statute or court decisions, some states have begun requiring that employers disclose to employees the possibility that they will be electronically monitored. From the human resources perspective, it is difficult for an employee to credibly complain about such monitoring when the employee handbook or other policy clearly provides fair warning of this possibility.
Absent extraordinary circumstances, employers that wish to engage in any form of electronic monitoring of employee communication or location should disclose their reservation of this right in order to dispel any expectation of privacy on the employee's part.