Firms may want to consider arming key employees with GPS devices - at least those working in New York.  That's because a NY Appeals Court recently ruled that employers can track its employees' off-hours activities, at least under certain conditions. The ruling by the Appellate Division, Third Department was a 3-2 split decision, in a case involving a former employee of the New York Department of Labor who sued his former employer for disciplining him based on information obtained while he was not working. The employee, Michael Cunningham, was fired in 2010 by his employer for submitting false expense reports and other travel records.  The Department determined that the submissions were bogus because the costs supposedly were incurred while Cunningham was off-duty, on a week-long family vacation.  That employer made that determination, relying on GPS data a DOL inspector gathered while monitoring Cunningham's whereabouts. Cunningham, who was first hired by the Department in 1980, claimed that use of the GPS device constituted illegal search and seizure.  He sued, claiming the data should have been suppressed at his termination hearing.  While he demanded a new termination hearing, he did not request reinstatement. Court's Majority, Minority Opinions. Writing for the majority, Justice John Lahtinen noted:  "To establish a pattern of serious misconduct, it was necessary to obtain pertinent and credible information over a period of time." The majority ruled that because the device was only monitored by an investigator during work hours, its use was constitutional. In dissent, Justice Edward Spain ruled that, although GPS tracking of employees suspected of misconduct is reasonable during work hours, the extent of the use - collecting data on his vehicle 24/7 - was unconstitutional.  Judge Spain further noted that, "(The Labor Department's) valid interest in (Cunningham's) whereabouts extended only to the hours of his workday, yet the device placed on (his) personal vehicle collected data 24 hours a day, seven days a week." Because the decision was split, Cunningham may appeal to the Court of Appeals without permission from the Third Department. The Case. Michael Cunningham v. New York State Department of Labor, New York Supreme Court, Appellate Division, Third Department No. 512036. For further details, go to:  [Reuters, 11/23/11].