Earlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement's placement of a GPS devise on a suspect's vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment. This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act.

Clearly, FMLA abuse can literally turn a workplace on its head. I have worked with many an in-house counsel and HR professional who would do just about anything - ahem, anything - to bring these FMLA abusers to justice. But GPS? It's an interesting thought, but presently does not enjoy the support of any case law. The closest the courts have come to address the issue has involved the use of private investigators to follow employees using FMLA and to report their findings to the employer. However, as our friends in Texas point out, data from a Global Positioning System may very well be the next frontier for discovery during litigation. For instance, might we subpoena GPS or "Onstar" data during the discovery period so as to defend our employer clients in the future? If we can legally do so, absolutely!