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New York's highest court is set to consider the appeal of a state appellate court ruling last year in favor of a public sector employer that used GPS to monitor an employee.
The New York State Court of Appeals has agreed to review the Nov. 23, 2011, decision in Michael A. Cunningham vs. New York State Department of Labor.
According to the New York State Supreme Court appellate division ruling, the state Labor Department became suspicious in 2008 that Mr. Cunningham, a state employee since 1980, was taking unauthorized absences from work and falsifying time records. The Office of Inspector General launched an investigation that included placing a GPS on his car.
GPS data was used as evidence in a hearing that led to Mr. Cunningham's termination. He then sought to suppress the GPS evidence, arguing its use violated the New York Constitution.
However, the appellate court ruled 3-2 in the state Labor Department's favor, saying use of GPS devices “was necessary to obtain pertinent and credible information over a period of time” to establish a pattern of serious misconduct. “Given the facts and circumstances at the time of the investigation, we are unpersuaded” that the state agencies “acted unreasonably.”
Corey Stoughton, who represents Mr. Cunningham and is a senior staff attorney with the New York Civil Liberties Union Foundation in New York, said she is confident the appellate court decision will be overturned.
The “U.S. Supreme Court is catching up to where the New York Court of Appeals has been for quite some time,” she said. The lower New York court “did not sufficiently grapple with the consequences of permitting warrantless surveillance of people's cars using GPS devices.”
An attorney in the New York attorney general's office had no comment.