Frank Gerardi and Stephen Vitka were fire inspectors for the City of Bridgeport, Connecticut. Their job duties included inspecting buildings located throughout the city for compliance with applicable fire codes. The City provided Gerardi and Vitka with city-owned vehicles to use in the performance of their duties. In May 2007, the City acquired new vehicles and, without advising Gerardi and Vitka, installed GPS devices in each of the vehicles in order to monitor electronically the fire inspectors’ movement and location while the vehicles were in use.
After monitoring Gerardi’s and Vitka’s activities through the use of the GPS devices and examining the information gathered by the devices, the City fired Gerardi and Vitka relating to the performance of their duties. Gerardi and Vitka then filed a lawsuit under a Connecticut law regulating the use of GPS devices in employment.
The law, General Statutes Section 31-48d, prohibits an employer from electronically monitoring an employee’s activities without prior notice to the employee. When a trial court dismissed their lawsuit, Gerardi and Vitka appealed to the Connecticut Supreme Court.
The Court found that Gerardi and Vitka had no right to bring a private lawsuit alleging violation of the GPS statute. Gerardi and Vitka claimed that since the language of the statute did not prohibit a private lawsuit, there must be an inference drawn that the right to bring such a lawsuit exists. The Court found that this argument ran counter to a basic principle of Connecticut law. The Court recounted:
“There is a well-settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, Gerardi and Vitka bear the burden of demonstrating that such an action is created implicitly in the statute. In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose benefit the statute was enacted? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?’’
The Court had little difficulty with the first of these tests, finding that Gerardi and Vitka were “clearly within the class of persons who were intended to be protected by the statute if the statute is applicable to electronic monitoring in employer-owned vehicles.” Where Gerardi and Vitka faltered was with the remaining two tests.
The Court concluded that “nothing in the GPS statute entitles employees who have been subjected to electronic monitoring without notice to any specific relief or remedy. Indeed, the statute does not even provide a mechanism by which an employee can report its employer to the labor commissioner for having violated the statute. Nor does the law provide any other administrative remedy for the employee. Instead, the statute provides solely for a penalty that the labor commissioner can impose once a violation of the section has been determined through an administrative hearing. The GPS statute therefore clearly delegates all powers related to violations of this statute to the labor commissioner.”
With respect to the intent of the Legislature, the Court held “if the Legislature had intended to provide the private remedy of a civil cause of action for enforcement of the law, it easily could have added language to indicate that such an action was authorized and intended. Other statutes governing employment regulation, of which the GPS statute is a part, clearly provide for the remedy of a civil action.”
Gerardi v. City of Bridgeport, 2010 WL 4931 (Conn. 2010).
Note: The Court did not address a lingering issue concerning GPS devices – whether placing the devices in the vehicles of public safety employees impacts a mandatory subject of bargaining, and thus must be negotiated.
This article appears in the February 2010 issue