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A new notice obligation for New Jersey employers takes effect next week.  As of April 18, 2022, New Jersey employers will be required to give written notice to all employees before using tracking devices in vehicles operated by employees.  More than a dozen states have enacted regulations concerning employer use of tracking devices in employee vehicles.  However, New Jersey’s requirements are less stringent than other, comparable state laws. 

 Who is Affected?

This notice obligation will broadly apply to any employer in New Jersey, as well as any New Jersey employer’s agent, representative, or designee.  Under the new law, notice is required before using tracking devices in either company-issued vehicles or employees’ personal vehicles.  This notice requirement does not supersede any mandates from the Federal Motor Carrier Safety Administration governing the use of electronic communications devices.

“Tracking device” is defined as “an 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. . . ”.  Assembly Bill No. 3950. The definition does not include devices used for the purpose of documenting employee expense reimbursement.  Assembly Bill No. 3950.  A narrow interpretation of this definition would not include devices that incidentally enable tracking, such as smartphones, or combined-purpose devices in vehicle fleets used for both audio/video surveillance as well as movement tracking.  However, even a narrow reading of this definition will include telematics devices that often solely track vehicle movements.

 What Notice is Required?

Notice must be provided to employees prior to using a tracking device.  The law does not require that notice be renewed.  Each new tracking device that is used requires its own notice prior to its use.

The law provides scant detail on the form and content of the required “written notice.”  That said, each employee must be given notice before a tracking device is used in that employee’s particular vehicle.  As such, simply providing generalized notice in the form of a poster or in a section of an employee handbook would likely be deemed insufficient.  Instead, individualized written notice should be provided.  This could be done in the form of a vehicle sticker or placard.

 Who is Exempt?

The only categories of employers that are exempted are state and local government entities, state correctional facilities, the state Parole Board, and state Department of Corrections.  Operators of charter bus transportation and public transportation, whether public or private, are also exempt. Most private employers will not be exempted from these new notice obligations.

Enforcement and Penalties

This notice requirement will be enforced by New Jersey’s Commissioner of Labor and Workforce Development.  Employers found to be non-compliant will face fines of up to $1,000 for the first violation and up to $2,500 for each further violation.  There are no additional caps or restrictions on the total amount of potential fines.  These fines can add up quickly if, for example, an employer installs tracking devices in a fleet of vehicles.  In that case, each device installed would be penalized.

Fey LLC will continue to monitor legal developments in connection with location tracking and privacy notice.  To ensure you don’t miss out on any articles and alerts we prepare on this or other significant data privacy laws and developments, you can follow our LinkedIn page here.

Eleazar Rundus, Associate Attorney at Fey LLC.

Will Kinney, a law clerk with Fey LLC and a law student at the University of Missouri — Kansas City School of Law, contributed to this post.

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