Cunningham v. New York State Department of Labor (Challenging warrantless GPS tracking of state employee’s personal car)

This lawsuit challenges the New York State Department of Labor’s warrantless planting of a GPS tracking device on an employee’s personal car. The device, planted as part of an investigation into workplace misconduct, tracked the whereabouts of 30-year Department of Labor employee Michael Cunningham and his family for at least a month, including during evenings, weekends and while the family went on vacation out of state. The lawsuit, an Article 78 petition, was filed on Dec. 6, 2010 in State Supreme Court of Albany County. It names the Department of Labor (DOL) as the defendant.

On June 3, 2008, at the DOL’s request, investigators for the office of the State Inspector General placed a GPS tacking device on Cunningham’s family car. It was planted for the purpose of investigating whether Cunningham accurately filled out his time sheets. In all, his family car was tracked 24 hours a day in June and July of 2008, including during a weeklong 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 police must obtain a warrant before using a GPS device to track criminal suspects.

The NYCLU filed an amicus brief in that case. Based on evidence gathered by the GPS device, the DOL sought to fire Cunningham, whose job title was director of the staff and organization development. At proceedings to determine the validity of the dismissal, a hearing officer considered the GPS evidence over Cunningham’s objections. The officer relied on that evidence to uphold Cunningham’s dismissal, referencing the GPS data more than 20 times in his findings. Cunningham was issued a notice of termination on Aug. 24, 2010.

The lawsuit asks the court to declare that DOL’s warrantless use of a GPS device to track Cunningham’s personal car violated the New York State Constitution’s guarantee against unreasonable searches and seizures. It also asks the court to declare that the hearing officer should not have considered the GPS evidence; to vacate the DOL’s decision to dismiss Cunningham; and reinstate Cunningham to his job. The lawsuit was moved to the State Appellate Division, Third Department, which on Nov. 23, 2011 upheld the hearing officer’s determination in a split decision.

On June 27, 2013, the New York State Court of Appeals unanimously ruled that the state acted unlawfully by planting a GPS tracking device on Cunningham’s personal car and tracked his movements outside of working hours. Writing for the Court, Judge Robert Smith wrote: “Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable.” Judge Smith stated that the Labor Department’s use of the GPS devise was “excessively intrusive” because “it examined much activity with which the State had no legitimate concern,” such as Cunningham’s activities on evenings, weekends and while on vacation. 

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