WE KNOW WHERE YOU ARE AT ALL TIMES
It seems, more and more often, the subject of my articles is related to the impact of technology on the workplace. One aspect that has triggered an ongoing battle – on the privacy front – is technology allowing the employer to track the whereabouts of employees.
People haven’t really embraced the concept that their employer may be able to track their location during the workday. They seem to consider their whereabouts to be personal information and the employer’s use of technology such as a GPS as an invasion of privacy.
Employers operating fleets of vehicles surely appreciated the development of global positioning systems (GPS) and mobile data terminals (MDTs). The effective use of such monitoring systems has allowed them to hone the efficiency of their mobile fleets.
They also, of course, have allowed closer monitoring of the drivers’ whereabouts and employees have sought ways to push back against that form of electronic surveillance.
A few months ago, I reported on a decision released by the Office of the Privacy Commissioner of Canada addressing a complaint by a driver of a municipal transportation service available to mobility-reduced citizens.
The driver objected to the installation of the MDT and GPS devices on vehicles he drives. He alleged that the employer was improperly collecting his personal information, being his daily movements while on the job.
Specifically, the driver alleged the transit organization was using MDT/GPS for the following reasons: to keep track of his time throughout the day; to make sure he did not take a break or lunch; to time every pick-up and drop-off, and; to track his route and travel time.
The Privacy Commissioner determined the information in dispute was collected and used by the employer strictly for an appropriate purpose – that of providing an efficient service to clients.
A recent decision by a B.C. arbitrator has lent further support to the concept that employers should be able to use technology to monitor their vehicles (and, by extension, their employees).
Otis Canada Inc. installed telematics devices in company vehicles. These devices make use of satellite technology to beam certain information about start/stop and duration times of vehicle trips, idling time, etc. They do not reveal the vehicle position in the same way as a GPS, but by connecting the dots vehicle location could be determined.
The employer’s stated purpose for installing the devices included evaluating and improving fuel efficiency, ensuring regular maintenance schedules were adhered to, and identifying unauthorized use of vehicles. The Union of Elevator Constructors grieved this practice on the basis that the telematics tracking violated B.C.’s Personal Information Protection Act (PIPA).
Labour arbitrator Steeves cited the principle that collecting information about company vehicles is a natural function of management, limited only by applicable terms of a collective agreement or by legislation.
Steeves determined the purposes of the telematics data were to reduce Otis’s fleet costs and to monitor its employees’ use of company vehicles. He found the possible use of the data to evaluate the performance of employees did not, in and of itself, transform that data into personal information which would be protected by PIPA.
Because the telematics data was not found to constitute personal information, its collection could not amount to an invasion of privacy contrary to the legislation. The union’s grievance was, therefore, dismissed.
This is another example of the ongoing push-back by employees and unions against the incursion of modern technology into the workplace. In this one context, at least, it appears the push-back isn’t having much impact.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.