The scene opens. A lone supervisor sits in a bleak back room monitoring employees through GPS. Sting’s hit song “Every Breath You Take” plays softly in the background. As Sting croons, “Every move you make … I’ll be watching you,” the supervisor sees an employee at home instead of at work. The supervisor leaps up with fists clenched and yells “Gotcha!”
Although real life is does not always imitate art, more and more companies are using GPS in some form to track their property, vehicles and workers or to operate timekeeping systems (geo fences). The potential problem is that California Penal Code Section 637.7 (Section 637.7) makes it a misdemeanor criminal violation to track a person with an electronic tracking device, and a violation of this statute may lead to the revocation of a business license issued under the California Business and Professions Code.
The California Constitution imbues citizens with guaranteed privacy rights. Thus, with the advancing technology and the severe potential penalties under the Penal Code and California Constitution, it essential that employers understand and be mindful when using GPS tracking in any form.
California citizens have an explicit right to privacy guaranteed under Article I of the California Constitution, which reads, “All people are by nature free and independent and have inalienable rights. Among these are . . . privacy.” In addition, the California legislature has been active in passing laws to further protect a citizen’s right to personal privacy. Section 637.7 is an example of one such statute.
Section 637.7 expressly prohibits the “use of an electronic tracking device to determine the location or movement of a person.” This section defines “electronic tracking device” very broadly as “any device attached to a vehicle or other moveable thing that reveals its location or movement by the transmission of electronic signals.”
As you might expect, Section 637.7 was written with the intent to prohibit placing tracking devices on personal vehicles, although it does provide a key exception allowing tracking with the consent of the owner of the vehicle. Since the inception of that statute, GPS technology has advanced well beyond physical devices placed on vehicles, raising the question of whether Section 637.7 would apply to cellphone applications used to track the location of the phone’s user. If so, could this apply to any employer using a cellphone or cellphone app for GPS tracking or a geo fence to track employees’ time or location?
In the California Federal District Court case of Moreno v. San Francisco Bay Area Rapid Transit District (2017), the court reasoned that a cell phone application is not a “device attached” to a cell phone within the meaning of the Section 637.7. Although a cellphone easily fits within the category of a moveable thing, a cell phone application does not so easily fit within the parameters of the statute because a cellphone application is software, rather than a physical device. Additionally, software is not attached but instead is downloaded to a cell phone. Based on the broader legislative intent, the court refused to apply Section 637.7 to the use of a cellphone application that tracked the user’s location while using the app. This reasoning was upheld and applied in In re Google Location History Litigation (2019) in which the district court reasoned that a literal attachment (a joining or fastening to something) is required for liability under Section 637.7.
Although a cell phone falls squarely within the meaning of a moveable object, these rulings seem to confirm that the plain language and legislative intent of the words “device” and “attach” as used on Section 637.7 do not include cell phone applications. This makes it appear that requiring employees to install a location-tracking app on their cellphones likely is not prohibited by Section 637.7. However, while the two rulings above may be persuasive in future cases, they are not absolutely binding and it is possible that a Court of Appeal or the State Supreme Court could find otherwise.
Employers should remain cautious when tracking employees’ locations, given that California’s privacy protections are much broader than Section 637.7. The cases discussed above do not provide a free-range pass for employers to track their employees in any manner they wish. Although Section 637.7 does not appear to prohibit the use of GPS tracking cell phone applications, other privacy rights (such as the California Constitution) could be implicated by this practice, and new legislation may be passed to create such a prohibition.
As an example, on January 1, 2023, AB 984 placed significant restrictions and notice requirements on business operating “fleet vehicles,” stating that “An employer, or a person acting on behalf of the employer, shall not use an alternative device to monitor employees except during work hours, and only if strictly necessary for the performance of the employee’s duties.” “Alternative devices,” are defined as “alternatives to stickers, tabs, license plates, and registration cards” as required to be displayed on all vehicles by the DMV. AB 984 specifically prohibits using these alternative devices to track employees, absent very specific notice requirements.
With these complications in mind, employers who wish to use any form of GPS tracking on their employees should do the following:
For questions regarding employee tracking via cell phone applications, or assistance with other employment law issues, contact the attorneys at LightGabler.