Driver Privacy Act of 2015

Executive Summary

Overview:   An increasing number of companies have been installing or otherwise using some of the latest monitoring technologies in vehicles driven by employees – whether those vehicles are owned by the company or the employee – usually for safety and/or logistics management. These technologies include event data recorders (EDRs) that capture a range of information just prior to or during a crash event. Seeking to address privacy concerns for data collected on EDRs, the Driver Privacy Act of 2015 (“Act”) was enacted as part of the Fixing America’s Surface Transportation Act (H.R. 22), signed by President Obama last month. Companies that have vehicle monitoring programs should review this new law.

Coverage:  All employers with vehicle monitoring programs.
 
Effective Date: Currently in effect

Action Required:   Contact your Human Resources Business Partner if you have any questions regarding these developments.

The Details

To what data does the law apply?

The law applies to any data retained by an EDR installed in a vehicle, and makes clear that the data belongs to the owner of the vehicle or, in the case of a leased vehicle, the lessee of the vehicle in which the event data recorder is installed. It does not matter when the vehicle was made. For purposes of this law, an EDR is defined in 49 CFR section 563.5 and generally means a device or function in a vehicle that records the vehicle’s dynamic time-series data during the time period just prior to or during a crash event, but does not include audio and video data. Installed in nearly all new cars, EDRs capture data elements such as speed, braking, use of a seat belt, and other information.

How does the law safeguard privacy?

The Act provides that data recorded or transmitted by an EDR may not be accessed by a person other than the vehicle’s owner or lessee. There are some exceptions:

• as authorized by a court or judicial or administrative authority, subject to the standards for admission into evidence required by that court or other administrative authority;
• if pursuant to written, electronic, or recorded audio consent of the vehicle owner or lessee;
• to carry out certain investigations or inspections authorized by federal law, subject to limitations on the disclosure of personally identifiable information and the vehicle identification number;
• to determine the need for, or facilitate, emergency medical response in response to a car accident;
• for traffic safety research, so long as the personally identifiable information of the owner or lessee and the vehicle identification number is not disclosed.

Are there state laws that apply here as well?

Yes, a number of states already have laws addressing privacy concerns related to information collected on EDRs. The exceptions to the collection of this data vary state to state, but many of those laws require the consent of the owner of the vehicle.

What effects will the Act have on employers?

Most monitoring programs apply to employees operating company-owned vehicles. In those cases, the employer owns or leases the vehicle and is consenting intuitively to accessing the data captured by the EDR. Of course, employers may nonetheless want to inform employees of the monitoring activity, and also have special considerations concerning certain groups in their workforce, including those represented by a union and those operating in other countries.

For those employers whose employees use vehicles that the employees own or lease, accessing EDR data will require the employees’ written, electronic, or recorded audio consent. Many employers are already doing this, particularly in states where this has been required for some time. However, the Act mandates this nationwide.

What are some best practices in implementing  GPS tracking?

As an initial matter consideration, employers should keep in mind that several states, California, Minnesota, Tennessee, and Texas, have laws preventing the use of mobile tracking devices in order to track other individuals.  Common exceptions to these laws include the consent of the owner of the device or vehicle to which a tracking device is attached. Once you have considered the privacy laws in the jurisdiction in which you plan to implement GPS tracking, there are a number of steps you can take in order to reduce risk:

• First, even if not required by law, you should consider obtaining written authorization from employees to install and use GPS tracking.
• Second, whether you require consent or not, it would be a best practice to put employees on notice of the monitoring.   This can be accomplished by making the notice the subject of a separate communication to employees (this would be the preferred approach), and also by placing such notice in a workplace monitoring policy. 

In fact, your company should already have in place an electronic systems policy that notifies employees that the company’s electronic systems and devices are subject to monitoring and inspection by the company at any time and that there is no expectation of privacy.  If you anticipate using company provided smart phones (or smart phones subsidized by the company) to also track employees, you should update your policy to include a notification of company provided or company subsidized smart phone tracking.  The policy should also require a written acknowledgment by the employee consenting to and understanding that the company property they are using will be monitored by GPS.  As with any policy, you should enforce it consistently.

Any notice (whether by policy or written communication) should clearly indicate which particular devices will be equipped with GPS technology, when the employees will be monitored / when the system will be active, what information will be gathered and how the information will be used (what is the benefit to the employer/ the legitimate business interest). 

• Third, you should consider limiting access to GPS tracking information to those who have a clear business need-to-know (and indicate in your policy that will have access to this information).
• Fourth, you should carefully weigh the risks of GPS monitoring of off-duty activities against the business need for the information and be careful not to use this information to punish off-duty conduct.  In this regard, it is a good idea to provide employees with instructions on how to turn-off the tracking technology to ease employees’ concerns about being tracked during off hours.

As always, please contact your Human Resources Business partner if you have questions.