New York's highest court on GPS, and who can share tips at a Starbucks

Thumbnail image for nys court of appeals exteriorTwo decisions this week by the New York Court of Appeals -- the state's highest court -- caught our eye.

One decision is about the use of a modern technology that's becoming ubiquitous -- GPS -- and governmental employees and their personal cars. The other is about an everyday thing that people might not think much about: tips at Starbucks.


This case involved Michael Cunningham, a state Department of Labor employee from the Capital Region who was fired after an investigation into allegations he had filed false time sheets. His situation got a lot of attention a few years back when the Times Union wrote about his "house arrest" by the DOL. As part of the state's investigation of Cunningham, it attached a GPS tracker to his personal car -- and then proceeded to track the car's movements not only during the work day, but also nights and weekends, even on Cunningham's family vacation. In 2010, the NYCLU sued the Department of Labor over this use of GPS in the investigation.

In the decision out this week, the Court of Appeals ruled that using GPS to track work travel is the equivalent of a "workplace search" -- like your employer going through your desk at work -- even if the car is a personal car (used to travel for work), and so attaching the GPS tracker doesn't require a warrant. But it also ruled the state didn't demonstrate the search was "reasonable" because of the scope of the search -- tracking the car during Cunningham's personal time and vacation.

The court ruled unanimously to send the Cunningham's case back to the appellate division and the Department of Labor.

From the majority opinion by Judge Robert Smith:

Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee's car as to eliminate all surveillance of private activity -- especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to stop short of seven-day, twenty-four hour surveillance for a full month. The State managed to remove a GPS device from petitioner's car three times when it suited the State's convenience to do so -- twice to replace it with a new device, and a third time after the surveillance ended. Why could it not also have removed the device when, for example, petitioner was about to start his annual vacation?

The state's investigation of Cunningham didn't totally hinge on the GPS data -- it also included surveillance, E-ZPass records, and interviews. So even though the court tossed the GPS part of this, it's not like Cunningham is necessarily in the clear.

Interestingly, the court was not unanimous on the issue of whether the use of GPS required a warrant. From an opinion by recently appointed judge Sheila Abdus-Salaam, joined by chief judge Jonathan Lippman and judge Jenny Rivera:

As we noted in Weaver, it is not difficult to imagine the inherently personal and private information such surveillance will yield, even if limited to working hours. While government employers need to know whether their employees actually worked during the hours for which they were paid, public employees are entitled to at least some expectation of privacy concerning their movements throughout the workday. A search as intrusive as GPS surveillance, which, as this case demonstrates, is highly susceptible to abuse without judicial oversight, requires a warrant. ...
... This case involves the search of an employee's personal car, not his office, desk, file cabinets (see id. at 715-716), or any other area physically inside the workplace. I reject the notion that government employees who use their cars for travel to and from work and work-related obligations place those cars within the ambit of their "employer[s'] control" such that they could be subjected to a warrantless search (id. at 715).

[* A 2009 Court of Appeals decision, also involving a GPS case from the Capital Region.]

Abdus-Salaam goes on to argue that the majority's interpretation of the law opens the way for employers to regard any personal object that accompanies a person to work as subject to a workplace search. And she also argues against opening the way for a personal car to be the subject of a warrantless search. She concludes:

The ramifications of the majority's decision will extend far beyond this case. All government employees, at all levels, in all three branches of government, may now be subject to electronic surveillance based upon a mere "reasonableness" standard, without any judicial oversight at the inception of the search. Given the majority's imprimatur of warrantless GPS tracking, less intrusive methods for investigating government employees will almost certainly be replaced with electronic surveillance. The potential for abuse that we recognized in Weaver is now closer to becoming a reality.

Tips at Starbucks

In the other decision, the court took up the issue of which levels of employees at Starbucks are eligible to share in the pool of tips. The Court of Appeals took on this question at the request of a federal court hearing two class action cases about the topic.

There's a state labor law regarding this topic -- it's aimed at keeping employers from taking tips intended for employees. Here are the relevant parts in this case:

No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. ... Nothing in this subdivision shall be construed as affecting ... the sharing of tips by a waiter with a busboy or similar employee.

So the question is essentially: Who is an agent of Starbucks? In one case, baristas argued that shift supervisors -- who are not salaried and basically do the same job, but have some shift leader duties -- are agents and as a result shouldn't get to share in the pool of tips. In the other case, assistant managers -- salaried employees who are one level up from shift supervisors -- argued that they are not agents and as a result should be able to share in tips.

The court's majority ruled that shift supervisors are basically the same as baristas, they're just acting as "captains." But it ruled that assistant managers have "meaningful or significant authority or control over subordinates," so they're not eligible. From the court's majority opinion, by Judge Victoria Graffeo:

In sum, an employee whose personal service to patrons is a principal or regular part of his or her duties may participate in an employer-mandated tip allocation arrangement under Labor Law § 196-d [the one quoted above], even if that employee possesses limited supervisory responsibilities. But an employee granted meaningful authority or control over subordinates can no longer be considered similar to waiters and busboys within the meaning of section 196-d and, consequently, is not eligible to participate in a tip pool.

If you're curious about this topic, the whole decision is worth reading because it provides a peek into the structure of a staff a Starbucks, and the way tips are distributed. Here's a clip:

Starbucks maintains a written policy governing the collection, storage and distribution of customer tips. Pursuant to this policy, each Starbucks store places a plexiglass container at the counter where patrons may deposit tips. Once these tip canisters become full, Starbucks requires that they be emptied into a bag and the money is stored in a safe. At the end of each week, the tips are tallied and distributed in cash to two categories of employees -- baristas and shift supervisors -- in proportion to the number of hours each employee worked. Starbucks does not permit its assistant store managers or store managers to share in the weekly distribution of tips. The company's decision to include shift supervisors in these tip pools was the impetus for the first lawsuit before us, while its exclusion of assistant store managers underlies the claims in the second action.

The attorney for the baristas told NYT they're still hoping the federal court will rule in their favor, framing a win as a way for baristas to make more money and forcing Starbucks to pay shift supervisors more.

More about tipping: A recent Freakonomics podcast focused on tipping -- and featured a Cornell professor who's studied the topic extensively. He argued that tipping might be illegal because it could be considered discriminatory.


I've recently attended a couple of the Court of Appeals sessions. It is fascinating, and a beautiful, nay, gorgeous venue.
The judges are extremely intelligent and witty - so the banter between the judges/attorneys is always interesting.
I recommend going to at least one afternoon of court there.

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