On August 28, 2013, the British Columbia Information and Privacy Commissioner issued a decision regarding whether an employer is permitted to use GPS technology to track the workplace activity of its employees.

Facts

In 2010, KONE Inc. ("KONE") started issuing GPS-enabled cell phones to its elevator service maintenance employees. The employees were required to input when they were on duty and off duty, and also when they arrived at or left client sites.

When an employee was "on duty", the GPS information from the cell phone was sent to KONE's telecommunications provider every 11 minutes. No GPS information was sent when the employee's status was "off duty."

When KONE received the GPS information, it was downloaded into its computer system for various uses. KONE's stated purposes for collecting and using the GPS information were to:

  • Ensure accurate client invoicing;
  • Use the information as evidence in litigation, for client invoice disputes, and to provide client servicing records;
  • Act as a time clock for employees to verify employee attendance and payroll;
  • Optimize client response times, which had incidental benefits such as fuel savings, identifying when vehicle maintenance was required, and reducing carbon emissions; and
  • Quickly locate employees in the event of an accident or emergency.

In a complaint to the Privacy Commissioner, the employees alleged that KONE was not permitted to use this information to manage the employment relationship under the Personal Information Protection Act (PIPA).

The Commissioner disagreed.

Was the Employer Acting Responsibly?

Subsequent to finding that the GPS information was employee personal information within the meaning of PIPA, the Commissioner provided a non-exhaustive list of factors for determining whether a reasonable person would consider it appropriate in the circumstances for an employer to collect GPS information:

  • Sensitivity and amount of employee personal information – Is the employer collecting more information than is necessary to achieve its purposes?
  • Likelihood of effectiveness of the technology – Is it likely that the collection of GPS information will fulfill the employer's reasonable objective?
  • Manner of collection and the use of the personal information – Were the employees aware that the information was being collected? How often does the employer access the information?
  • Availability of less privacy-intrusive alternatives – Has the employer considered the balance between its interests and the interest of employees in protecting their personal information?
  • Offence to the employees' dignity.

The Commissioner found that the GPS information was reasonably required for KONE to manage the employment relationship and that a reasonable person would consider it appropriate in the circumstances for KONE to collect and use the information. As such, KONE was authorized to collect and use the GPS information for the purposes described above.

Was Adequate Notice Given?

Having determined that the collection of the information was reasonable, the Commissioner considered whether KONE had provided the employees with adequate notice of the implementation of the GPS tracking technology as required by PIPA.

The Commissioner held that KONE had provided sufficient notice through a general privacy policy, a letter notifying the employees that it was activating the GPS on their cellular phones, and two separate PowerPoint presentations. The Commissioner nonetheless recommended that KONE provide the employees with a comprehensive policy dealing with the collection of the GPS information by way of the cellular telephones.

Lessons for Employers

The Commissioner confirmed that the use of GPS tracking technology is a viable option for employers in B.C. in managing a mobile workforce.

However, employers who are considering the use of such technology should keep the following in mind:

  • The GPS tracking in KONE was done using equipment issued by the employer.
  • It is crucial that an employer is not collecting more information than is necessary. In KONE, it was relevant that it did not continuously monitor or review the GPS information and the information collected only permitted KONE to determine whether employees were at work locations.
  • It is essential that the employees be provided with adequate notice before the GPS tracking is implemented. This notice must include the type or types of personal information to be collected, the use or uses to which the personal information is to be put, and the purpose or purposes for the collection and use of the personal information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.