Cunningham v. New York State Department of Labor (challenging GPS tracking of a state employee’s personal car without a court order)

This lawsuit challenges the New York Department of Labor's placement of a GPS tracking device on an employee's personal car without a court order. The device was installed as part of an investigation into workplace misconduct and tracked the whereabouts of Michael Cunningham, who has worked for the Department of Labor for 30 years, and his family for at least a month, including evenings, weekends, and while the family was on out-of-state vacation. The lawsuit, an Article 78 petition, was filed in Albany County State Supreme Court on December 6, 2010. The Department of Labor (DOL) is named as the defendant.

On June 3, 2008, investigators from the state's Office of the Inspector General installed a GPS tracking device on Cunningham's family car at the request of the Department of Labor to determine whether Cunningham had correctly filled out his time sheets. In total, his family's car was monitored 24 hours a day during June and July 2008, including during a week-long family vacation in Massachusetts. In May 2009, the New York State Court of Appeals, the state's highest court, ruled in People v. Weaver that the police must obtain a search warrant before they can use a GPS device to track suspects.

The NYCLU filed an amicus curiae brief in the case. Based on the evidence collected from the GPS device, the DOL sought to fire Cunningham, whose job title was Director of Human Resources and Organizational Development. At the hearing to determine the legality of the firing, a hearing officer considered the GPS evidence over Cunningham's objections. The officer relied on that evidence to uphold Cunningham's firing, referencing the GPS data more than 20 times in his findings. Cunningham was served with a notice of termination on August 24, 2010.

The lawsuit asks the court to find that the DOL's use of a GPS device without a court order to track Cunningham's personal car violated the New York State Constitution's guarantee against unreasonable searches and seizures; to find that the hearing officer should not have considered the GPS evidence; to reverse the DOL's decision to fire Cunningham; and to reinstate Cunningham to his job. The lawsuit was transferred to the State Appellate Division, Third Department, which on November 23, 2011, affirmed the hearing officer's decision in a unanimous decision.

On June 27, 2013, the New York State Court of Appeals ruled unanimously that the state acted unlawfully when it placed a GPS tracking device on Cunningham's personal car and tracked his movements during off-hours. Writing for the court, Judge Robert Smith said, “When an employer conducts a GPS search without making reasonable efforts to avoid tracking an employee during off-hours, the search as a whole must be considered unreasonable.” Judge Smith stated that the Department of Labor's use of the GPS device was “overly intrusive” because “it monitored many activities in which the state had no legitimate interest,” such as Cunningham's activities on evenings, weekends, and vacations.

State Supreme Court, Albany County, Index No. 8140-10 (direct)