Last week, I attended mandatory Workplace Safety and Insurance Board (WSIB) certification training as a management member of my employer’s Joint Health and Safety Committee. One thing I found interesting is how employers control and monitor workplace hazards, in particular when the hazards relate to vehicles that are considered a workplace.
As you may know, Part 2 of this certification course is about learning how to identify, assess and control hazards specific to your workplace environment. I was surprised to hear many of the participants indicate that, to control business-related driving hazards, they use global positioning systems, or GPS, to help keep track of their employees, whether using an employer-provided vehicle or personal vehicle.
Safety is the expressed justification that's driving the use of GPS in the workplace; however, from what was explained, most employers’ use goes beyond safety. Frankly, I was taken aback by the lengths to which employers are going to track the whereabouts and activities of their employees in the name of safety.
Employers are tracking, among other things: driving speeds, dangerous driving habits, location, responding to an alarming situation, misuse and non-work-related trips, hours worked, lunch and other breaks, how long it takes to do a job, ensuring efficient routing for jobs, estimated times of arrival for customers and also proof of arrival times when there are disputes about billing or meeting contracted delivery times. GPS also allows the vehicle to be located in the event of theft.
Unfortunately, these workplace technological improvements often come at the expense of employees’ privacy. Employees usually consider their location or what they do away from the office to be personal information and, as a result, they consider an employer’s use of technology such as a GPS an invasion of their privacy.
GPS systems have not yet received a great deal of scrutiny under privacy legislation, but they have been the subject of several decisions under the Personal Information and Protection of Electronic Data Act (PIPEDA). In a 2007 paper, Dan Michaluk, of Hicks Morley LLP, gave a good overview of cases on GPS surveillance, which is still relevant.
What we can take from Dan’s paper is that privacy commissioners have consistently supported the use of GPS for purposes of safety, efficiency and productivity, while rejecting its use for employee management. While the Privacy Commissioner of Canada accepted at the time that GPS is appropriate to address issues of productivity, she did express concern about using GPS to “continually monitor” employees for performance management and disciplinary measures.
The issue of the appropriate use of GPS in employees’ vehicles was revisited in 2009 in PIPEDA Case Summary #2009-011. The complainant employee alleged that the employer was improperly collecting personal information without consent to keep track of his time and route, and to ensure he did not take improper breaks or lunches. The employer alleged that it was not using the GPS to manage its employees but to provide efficient service to its clients.
To that end, the employer accessed the information only if there was a complaint from a client or for safety reasons. The privacy commissioner determined that the employer collected and used the information in dispute strictly for an appropriate purpose—that of providing an efficient service to clients.
The themes arising in the 2009 case and the cases discussed in Dan’s paper revolve around employee management, not the validity of GPS technology. It is an employer’s declared policy of not using GPS for performance management purposes that renders the technology acceptable.
Striking the proper balance between the employer’s right to manage and the employee’s right to privacy has long been an important exercise for employers, and this exercise applies also in the case of GPS tracking.