An increasing number of companies have been installing or otherwise using some of the latest monitoring technologies in vehicles driven by employees – whether those vehicles are owned by the company or the employee – usually for safety and/or logistics management. These technologies include “event data recorders” or EDRs that capture a range of information just prior to or during a crash event. Seeking to address privacy concerns for data collected on EDRs, the Driver Privacy Act of 2015 (“Act”) was enacted as part of the Fixing America’s Surface Transportation Act (H.R. 22), signed by President Obama on Friday, December 4, 2015. Companies that have vehicle monitoring programs should review this new law.

To what data does the law apply?

The law applies to any data retained by an EDR installed in a vehicle, and makes clear that the data belongs to the owner of the vehicle or, in the case of a leased vehicle, the lessee of the vehicle in which the event data recorder is installed. It does not matter when the vehicle was made. For purposes of this law, an EDR is defined in 49 CFR section 563.5 and generally means a device or function in a vehicle that records the vehicle’s dynamic time-series data during the time period just prior to or during a crash event, but does not include audio and video data. Installed in nearly all new cars, EDRs capture data elements such as speed, braking, use of a seat belt, and other information.

How does the law safeguard privacy?

The Act provides that data recorded or transmitted by an EDR may not be accessed by a person other than the vehicle’s owner or lessee. There are some exceptions:

  • as authorized by a court or judicial or administrative authority, subject to the standards for admission into evidence required by that court or other administrative authority;
  • if pursuant to written, electronic, or recorded audio consent of the vehicle owner or lessee;
  • to carry out certain investigations or inspections authorized by federal law, subject to limitations on the disclosure of personally identifiable information and the vehicle identification number;
  • to determine the need for, or facilitate, emergency medical response in response to a car accident;
  • for traffic safety research, so long as the personally identifiable information of the owner or lessee and the vehicle identification number is not disclosed.

Are there state laws that apply here as well?

Yes, a number of states already have laws addressing privacy concerns related to information collected on EDRs. The exceptions to the collection of this data vary state to state, but many of those laws require the consent of the owner of the vehicle.

What effects will the Act have on employers?

Most monitoring programs apply to employees operating company-owned vehicles. In those cases, the employer owns or leases the vehicle and is consenting intuitively to accessing the data captured by the EDR. Of course, employers may nonetheless want to inform employees of the monitoring activity, and also have special considerations concerning certain groups in their workforce, including those represented by a union and those operating in other countries.

For those employers whose employees use vehicles that the employees own or lease, accessing EDR data will require the employees’ written, electronic, or recorded audio consent. Many employers are already doing this, particularly in states where this has been required for some time. However, the Act mandates this nationwide.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.