New Jersey Joins The Trend Of Increasing Privacy Protections For An Employee's Location

• Published date: 31 March 2022
• Subject Matter: Employment and HR, Privacy, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Privacy Protection
• Law Firm: Littler Mendelson
• Author: Ms Zoe Argento, Francis A. Kenny and Spencer Soucy

In the last few years, a flurry of state privacy legislation has bolstered protections for everything from biometric data to rights of deletion. Location data is no exception. The latest statute, New Jersey's Assembly Bill No. 3950, goes into effect on April 18, 2022 and requires employers to provide notice to employees for certain types of geotracking. This law continues the steady advance in protections-both in state legislatures and in the courts-for the privacy of an employee's location. Employers in every state should examine their geotracking programs to address the risks created by these developments.

What does New Jersey's new law require?

Assembly Bill No. 3950 requires that employers provide written notice to employees if the employer "knowingly makes use of a tracking device in a vehicle used by an employee" when that device is "designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device."¹ The law's definition of "tracking device" supports a narrow reading that excludes devices capable of tracking location but that are not designed or intended to be used solely for that purpose. It is not yet clear, however, how narrowly courts will interpret the law's "tracking device" definition.

What does a tracking device include?

Reading the law narrowly, a tracking device would exclude many common forms of geotracking. For example, it would not cover GPS tracking apps in company-issued smartphones because of the wide array of other functions performed by a smartphone. Similarly, tracking devices would not include combined devices often used in a fleet of trucks that capture vehicle movement as well as perform audio and video surveillance. The law's definition of "tracking device," furthermore, excludes devices "used for the purpose of documenting employee expense reimbursement," one of the most common reasons that employers track location.²

On the other hand, a tracking device likely includes telematics devices that track movement, e.g., hard braking, swerving, and speeding, because this information includes "movement" if not location. Other equipment that might be covered include devices issued by insurance carriers to monitor safe driving and GPS locators that track drivers' routes.

What are the penalties for not complying?

New Jersey's law does not provide a private right of action. Rather, the law is enforced by New Jersey's Commissioner of Labor and Workforce Development pursuant to New Jersey's...