It is not uncommon for employers to track their company vehicles to monitor employee efficiency or prevent vehicle theft. Currently, an employer may track a vehicle driven by an employee if the vehicle’s registered owner, lessor, or lessee has consented to the use of an electronic tracking device with respect to the vehicle.[1] Essentially, an employer may track a vehicle driven by an employee but which is owned or leased by the employer without the employee having to consent to such tracking (so long as the employer itself consents).

Recently, a new law[2] was approved by Governor Newsom which will significantly change the legal requirements for tracking vehicles driven by employees. The new law covers a variety of issues related to motor vehicles and will take effect January 1, 2023.

Regarding vehicle tracking, the new law states that “[a]n employer, or a person acting on behalf of the employer, shall not use an alternative device to monitor employees except during work hours, and only if strictly necessary for the performance of the employee’s duties.” “Monitoring” has a broad definition under the law, and includes “locating, tracking, watching, listening to, or otherwise surveilling the employee.”

Unfortunately, the law does not define what “strictly necessary” means, thus making it somewhat unclear when tracking will be authorized under the new law. Therefore, employers who currently monitor or are considering monitoring vehicles driven by their employees should re-evaluate whether it is essential to do so.

All employers who choose to monitor their vehicles’ whereabouts must notify their employees of the tracking. The notification to employees must include the following:

(A) a description of the specific activities that will be monitored;

(B) a description of the worker data that will be collected;

(C) a notification as to whether the data gathered through monitoring will be used to make or inform any employment-related decisions, including, but not limited to, disciplinary and termination decisions, and, if so, how, including any associated benchmarks;

(D) a description and the names of any vendors or other third parties to which information collected through monitoring will be disclosed or transferred;

(E) a list of which of the employer’s staff will have access to the data;

(F) a description of the dates, times, and frequency that the monitoring will occur;

(G) a description of where the data will be stored and the length of time it will be retained; and

(H) a notification of the employee’s right to disable monitoring, including vehicle location technology, outside of work hours.

Employers who fail to comply with the law’s notice requirements can be fined $250 for an initial violation and $1,000 per subsequent violation. Such fines are calculated per employee, per violation, and per day and thus could equate to a substantial amount rather quickly. The law also provides protection from retaliation for employees who remove or disable the monitoring device to prevent tracking outside of work hours. Employers who have questions regarding what may be considered “strictly necessary” or how to comply with the notice requirements should consult with Navigato & Battin.

[1] California Penal Code Sec. 637.7.

[2] Assembly Bill No. 984.