Using GPS to monitor off-site employees has once again been approved by the British Columbia Office of the Information & Privacy Commissioner.
In August, we wrote a blog on time theft by employees, noting that in British Columbia, using GPS and engine status data from the company’s vehicle to effectively manage elevator inspectors working offsite was not an invasion of their privacy in the 2012 Schindler Elevator decision.
In Thyssenkrupp, like in Schindler, the GPS device was installed in the company-owned vehicle, and was used to track the movements and productivity of employees throughout the day. The Adjudicator confirmed that using GPS in this way was not a breach of employee privacy.
However, as the employees had not been given appropriate notice on how the GPS system would be used, Thyssenkrupp was ordered to suspend its use for a period of 10 weeks to ensure all employees were given proper notice.
In Kone Inc., the GPS devices were contained in company cell phones that elevator mechanics used. Employees argued this was more intrusive than using GPS data from the company vehicle because it tracked all of the movements of the employee. Such tracking, they argued, constituted an invasion of privacy under British Columbia’s legislation.
The Adjudicator disagreed, finding that the use of GPS tracking through cell phone data was a fair substitute for supervision where in-person supervision was not practical. He said information collected by the employer was not particularly “sensitive” because it concerned the location of employees during working hours.
The Adjudicator found that the following facts suggested the employee’s privacy was not violated:
- The mechanic had the ability to put the phone on “off duty” status and was expected to do so during break times, lunch times, and non working hours. When on “off duty” status no information was fed back to the main office.
- Due to the wide geographic working location of the mechanics, Kone Inc. had valid safety concerns, and the ability to track employees was a safety feature. Part of that safety feature included alerting the employer when a phone has been stationary more than 30 minutes.
- In addition to acting as a time clock for employees, the data was collected for other legitimate purposes, such as client billing. The GPS recorded the time at different jobs in the same way employees previously recorded recorded time manually.
- Questioning the employees based on the location information provided by the GPS was “nothing remarkable.” Where employees are not where they are supposed to be during working hours, not following company rules, or struggling with productivity, it is not an uncommon workplace response for management to question the employee.
In both cases the Adjudicators recommended that the employers create a specific policy setting out the purpose for which GPS information would be collected, used or disclosed, rather than relying on broad safety and managerial policies to justify the use of GPS tracking.
What this means to you
If an employer has a legitimate business reason for collecting GPS information on employees working off-site, it may not be a breach of an employee’s privacy to do so.
While these cases specifically interpret British Columbia’s privacy legislation, the underlying theme in Schindler, ThyssenKrupp and Kone suggests that GPS monitoring to establish where an employee is during working hours, and how much time they are spending on a job, is akin to in-person supervision and more practical where the employer has multiple remote employees.
If you are considering setting up a GPS tracking system that will be used as a monitoring tool for off-site employees, it is important to remember that there were a number of specific facts in these cases which led to the Adjudicators findings, including:
- the information collected on employees was limited;
- employees were not monitored during off-duty times;
- employees were off-site close to 100% of their working time;
- the GPS devices were in company-owned equipment that the employee did not pay for;
- the information was also collected for purposes other than employee supervision or management;
- information about how the GPS data would be used was required to be communicated to employees in advance;
- the Adjudicators encouraged employers to develop specific written policies surrounding the use of GPS data;
- and notice of implementation of the system is an important consideration before it starts being used.