Pub. 12 2014-2015 Issue 3

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 17 new jersey auto retailer W W W . N J C A R . O R G audit an employee’s use of electronic equipment, if the audit is reasonable in its inception, reasonable in its scope, and the employee has waived or limited his or her expectancy of privacy. In a United States Supreme Court decision, an employer audited employee usage of pagers issued by the company, for purpose of controlling costs. The audit uncovered an inordinate number of personal text messages, some of them sexually explicit. The em- ployee was disciplined. He sued, contending that the employee’s right to privacy was violated. The Court held that the employer did not violate the employee’s right of privacy because the audit was reasonably work-related at its inception and in its scope. That rationale also applies to employee-owned devices used for company business. An employer can protect itself if: (1) there is published, distributed and acknowledged a reasonable and appropriate rule regarding the employer’s right to access messages on electronic devices used for work-related purposes; and (2) the rule clearly expresses limitations on an employee’s privacy expectations with respect to searches that are initiated for work-related reasons, and (3) at its inception there is a le- gitimate work-related purpose for the search; and (4) the scope of the search is reasonable. E. GPS Tracking of Employees Global positioning technology allows employers to monitor their employees when they are not at the work site. Use of GPS technology is permissible, provided it does not intrude upon an employee’s reasonable expectation of privacy and is used on vehicles at the time the employee is supposed to be working. It is not permissible to use the device when the employee is not scheduled to be at work. The employer should have a written and acknowledged policy stating the proper use of the vehicle and that the company reserves the right to use GPS on vehicles provided to workers. Employee use of mobile devices while engaged in company business is useful and can promote efficiency and economy, but it can also cause unanticipated liabilities. In order to minimize the risk, it is imperative that work rules and policies be crafted to insure the proper use of the equipment and the right to gain access to information when appropriate. Social media has impacted the protection of proprietary and confidential information such as customer lists and business in- formation. Much of that information is electronically stored and readily accessible by employees. The information is protectable, if the employer takes reasonable measures to protect it. Absent protective policies and directives prohibiting disclosure of truly confidential information the protection can be lost. Luanne Peterpaul, ESQ. is a partner and chair of the labor and employment group at Gluck Walrath, LLP. She has advised clients in the automotive industry for over 20 years. Luanne can be reached at 732.530.8822 or via email at LPeterpaul@glucklaw.com. COMMUNICATION  continued from page 15