On January 18, 2022, a New Jersey bill which prohibits employers from making use of tracking devices in vehicles operated by employees without providing written notice was passed into law. See Assembly Bill A3950. Effective April 18, 2022, the law will subject employers that knowingly make use of a "tracking device" in a vehicle used by an employee without providing written notice to the employee to civil penalties not exceeding $1,000 for the first violation and not exceeding $2,500 for the second violation. Id.
Earlier in January 2022, a prior version of the bill was subject to the New Jersey governor's conditional veto that watered down some of its provisions (e.g. changing the criminal penalties to civil penalties), which the Assembly and Senate passed in concurrence with the governor's recommendations. Importantly, the legislation transitioned away from a consent requirement to a notice requirement for the use of a tracking device in a vehicle used by an employee.
The enacted bill requires that such notice provided to employees be written, although the law does not explicitly outline what must be disclosed in the notice's language. Id. The law defines employers as "an employer or employer's agent, representative, or designee," while exempting a number of government employers such as the Department of Corrections, and state and local law enforcement agencies. Id. Based on this definition alone, which largely aligns with definitions of "employer" in other New Jersey labor statutes, it is not yet clear how courts will understand the scope of covered employers.
The law defines "tracking device" to include electronic or mechanical devices which are designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device but shall not include devices used for the purpose of documenting employee expense reimbursement." Id. (emphasis added). This definition supports a narrow reading that excludes devices that are able to track movements but are not designed solely for that purpose (e.g. smartphones). Again, however, how narrowly courts will choose to interpret this provision of the law is not yet clear.
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