Kone Inc. (“Kone”) uses employee-specific, GPS-enabled cellular phones as its employee monitoring technology. The phone GPS is only active when an employee sets the phone status to “on duty”, and when an employee inputs that they are leaving a client site, the GPS data is sent back to Kone. At first glance this technology is more intrusive into the personal sphere than the GPS-enabled company vehicles used by ThyssenKrupp Elevator (Canada) Limited (Order P13-02); this difference is explored in the discussion of whether the collection of information was reasonable taking into account the sensitivity of the information and the amount of information collected (Order P13-01 at paras 46-52).
Order P13-01 was issued along with Order P13-02, discussed in the blog post “Order P13-02: GPS monitoring by employer (still) ok”. As with Order P13-02, Order P13-01 reinforces Order P12-01 at every step of the analysis. An interesting difference is noted below.
The “employee personal information” analysis in Order P13-01 is similar to that in Order P12-01 and Order P13-02. However, there is a clarification to the test for “employee personal information” set out in Order P13-02 (quoting Order P12-01) that is not present in Order P13-01. The clarification states that there is no requirement for collected information to have only one purpose to meet the requirement that it be used “solely” for purposes of managing the employee relationship; only that as between the organization and the employee the purpose for collection is solely to manage the employment relationship (Order P13-02 at para 32). In Order P13-01 the Adjudicator determines the “sole use” requirement is met by finding “there is no evidence here that Kone is using the GPS information as personal information for purposes other than to manage the employment relationship” (emphasis added). It will be interesting to see whether future applications of the test for employee personal information make anything of this difference, or preferentially reference Order P13-01 (and Order P12-01) or Order P13-02 for this element of the analysis.
There is an important clarification related to “purpose” that was not highlighted in our Order P13-02 blog post; it is worth emphasizing it here as a caution to employers. The clarification was in response to Kone’s argument that the Commissioner does not have jurisdiction to determine whether or not Kone’s use of “employee personal information” is reasonable (spoiler alert: the Commissioner does have this jurisdiction). The Adjudicator dismisses Kone’s argument that the Commissioner does not have jurisdiction to assess Kone’s use of the information as follows: “[t]he fact that employee personal information can be reasonably used for one declared purpose does not mean that an organization is necessarily entitled to use the information for other purposes.” (Order P13-01 para 34; also see Order P13-02 para 40).
For ease of reference Kone’s uses and purposes (deemed acceptable by the Adjudicator) are summarized below.
Kone’s uses of the GPS information:
- To determine an employee’s arrival and departure from a client site
- To locate an on-duty employee
- To determine an employee’s travel time between sites
- To determine the length of time an employee is “on duty”
- To plan service routes
- To generate a map to prioritize work assignments
- To send automatic updates to clients
- To follow-up on employee inactivity as a safety precaution
Kone’s purposes in connection with the above uses are:
- To ensure accurate invoicing
- As evidence in the event of a dispute or litigation
- To verify payroll
- To optimize response times
- To locate an employee following an accident or emergency