Earlier this year, New Jersey Governor Phil Murphy signed into law Assembly Bill No. 3950, which requires employers in the State to provide written notice to an employee before using a tracking device on a vehicle used by the employee. The new law, which went into effect on April 18, 2022, recognizes that employers may have a legitimate business interest in being able to track their workforce’s whereabouts—particularly when traveling or working offsite—while also reconciling that with the protection of workers’ privacy rights. At the very least, the days of covertly tracking employee vehicles appear to be a thing of the past.

The law defines “tracking device” as any “electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device,” with a specific carveout for devices used solely for the purpose of documenting employee expense reimbursement.

Significantly, the written notice requirement applies to the use of tracking devices in any vehicles used by an employee. It does not matter whether it is an employee’s personal vehicle (whether owned or leased) or company-owned or provided. Written notice must be provided regardless.

Failure to comply with the law’s notice requirements can carry substantial penalties. An employer who knowingly makes use of a tracking device in a vehicle used by an employee without providing written notice to the employee shall be subject to a civil penalty up to $1,000.00 for the first violation, and then up to $2,500.00 for each subsequent violation. These fines can add up quickly, especially for service businesses with large vehicle fleets, among others. Additionally, it is possible that failure to comply with the law’s notice requirements may implicate employee privacy rights that could lead to further civil exposure.

Private employers within the State must ensure they have appropriate policies and procedures in place to comply with the new law’s requirements and insulate their businesses from potential liability for violations. While it does not specify what the required “written notice” must look like or how it must be conveyed to employees, at minimum employers should update their employee handbooks as well as provide a stand-alone, written notice to employees, with signed confirmation and acknowledgement of receipt. Additionally, rule and regulations regarding GPS tracking of employee vehicles may vary from state to state, so employers with a multi-state presence or service area need to be aware of the different laws that may apply to them depending on where their employees are working.

Employers who have not yet updated their forms and procedures should immediately contact counsel and take steps to ensure that they are in compliance. Similarly, it may be prudent for employers who drafted their own policies to have experienced employment counsel perform a policy or handbook review and provide advice and guidance regarding employer responsibilities and obligations, including but not limited to ensuring compliance with New Jersey’s new vehicle tracking device law.