Fire Inspectors Can't Sue Over GPS Law Violations

From The Connecticut Law Tribune, January 15

A few years ago, Bridgeport, Conn., city fire inspectors Frank Gerardi and Stephen Vitka spent most of their workday visiting friends, doughnut shops or even working on their rental properties rather than inspecting buildings for fire code violations.

Or at least that's what city officials believed.

But nobody really knew for sure until after the Bridgeport's fire chief, unbeknownst to them, placed global positioning system tracking devices in their vehicles. Then Chief Brian Rooney began noticing that the daily reports the inspectors filed failed to match the data that was stored in the GPS with regard to where they had traveled and what properties they inspected.

A private detective was later hired to trail the men, and he discovered very little time was actually spent inspecting buildings for fire code violations. The inspectors were later fired.

In return, Gerardi and Vitka filed a lawsuit against the city of Bridgeport, claiming officials had violated a state statute that prohibits an employer from electronically monitoring an employee's activities without prior notice given. They sought temporary and permanent injunctive relief as well as money damages.

However, then-Bridgeport Superior Court Judge Deborah Kochiss Frankel ruled against the inspectors, granting motions filed by the city to dismiss the suits on the grounds that the men didn't exhaust available administrative remedies.

The fire inspectors appealed and in a decision released last week, the state Supreme Court unanimously upheld the trial court's decision.

"This case puts to bed any question of whether a private right of action exists" under the GPS statute, explained attorney Joshua Hawks-Ladds, of Pullman & Comley in Hartford. "The answer from the Supreme Court is such a right does not exist. And it's irrelevant of whether the employer in question is public or private."

LABOR COMMISSIONER

Hawks-Ladds, who chairs the Connecticut Bar Association's Labor and Employment Law Committee and was not directly involved in this case, said state statute does indeed require employers to tell employees in writing if they plan to monitor their comings and goings with GPS.

But the remedy for those who feel they were unfairly tracked by GPS, he said, is not a lawsuit. Instead, as Justice Christine S. Vertefeuille explained in the decision, the two men must take their case to the state's labor commissioner who could levy a civil penalty of $500 to any employer for a first offense of not informing employees of GPS or other electronic monitoring.

A second offense would cost an employer $1,000 in fines and $3,000 for a third and any other subsequent offense. "We conclude that the legislature intended the enforcement mechanism ... to be limited to proceedings before the labor commissioner, and not to allow employees to bring civil actions," wrote Vertefeuille.

Gerardi and Vitka's lawyers, a team from Bridgeport's Daly, Weihing & Bochanis, led by Thomas Weihing, did not return repeated calls for comment last week.

"Could an employer violate this law and get away with it without much of a penalty? The answer is yes," said Hawks-Ladds.

Hawks-Ladd cautioned though that employers may not want to be so quick to violate the law, despite the relatively minor penalties.

"It'd be easier to post a notice like the law requires" if an employer wanted to track employees with a GPS device, Hawks-Ladd said. Employers "can be penalized by the state Department of Labor and you don't want the Department of Labor investigating your business for any reason because you never know what they're going to turn up."

'NAKED EYE'

A lawyer representing the city of Bridgeport, John P. Bohannon Jr., of Fairfield, couldn't be reached for comment last week. But he told the Law Tribune after the trial judge's decision in 2008 that GPS use would "increase performance and add integrity" to the workplace. "I think this is very significant. Employees will be more mindful of their work habits," said Bohannon Jr.

Bernard Jacques, a partner specializing in employment and labor law at Pepe & Hazard, said that in general, employers are turning more and more to GPS use due to favorable rulings from courts in states across the country.

Jacques noted that the majority of states, unlike Connecticut, do not even require prior notice to employees of the GPS use. He said most states rely on common law right of privacy.

"You see more and more employers use GPS, not just to track employees and where they're going but also monitor potential traffic violations," said Jacques. "And the law, at least as it's currently developing, since the employees are in public, they have no reasonable expectation of privacy. If you can observe the person with the naked eye, you can use technological means to do the same thing."