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Employers Permitted to Use GPS Tracking in BC

According to a ruling made in late August, 2013, employers in BC are permitted to track the whereabouts of their workers, despite complaints that it is a highly privacy-invasive practice. The British Columbia Office of the Information and Privacy Commissioner decided to uphold the rights of two employers – both elevator companies – to use GPS technology to keep tabs on their employees.

Thyssen Krypp & Kone

Unionized workers at ThyssenKrypp Elevator Ltd. and Kone Inc. had filed complaints that the practice was unfair, illegal and intrusive. They filed complaints over the use of GPS tracking. The employees at both companies are members of the same local of the International Union of Elevator Constructors.

Since early 2011, ThyssenKrupp has been using devices installed on its vehicles to monitor its mechanics. Kone has issued its employees GPS-enabled phones that record activity since 2010.

Workers complained that this type of GPS technology and the tracking practice their employers instated were violations of the province’s privacy legislation and represented an “offence to the dignity” of the employees.

In response, the companies insisted that it was reasonable to use the GPS data to more efficiently deploy its staff, ensure mechanics could be located in case of an emergency, provide more accurate billing information to clients, and ensure that workers were actually where they reported they were. One of the companies involved in this controversy was ordered to temporarily stop using the technology until it could provide its workers with better notice on what information was actually being collected and how it was being used.

Kone employees are issued cellphones which indicate when they come on and off shift, and when they arrive and leave a work site. The system then transmits that information back to the employer.

ThyssenKrupp’s system relies on devices that are installed on its vehicles. The devices record and transmit location data and information about the vehicle, such as its speed and instances of harsh braking or rapid acceleration.

Within the Law?

Privacy adjudicator, Ross Alexander, from the BC Office of the Information and Privacy Commissioner, took the side of the companies, coming to the conclusion that they were acting within the law.

In one of the two decisions, Alexander commented:

“I am satisfied that use of the system is likely to be effective for Kone’s stated purposes. Kone mechanics are a mobile workforce who generally work alone in widely distributed geographic areas, so regular in-person supervision is not practical… Kone’s use of the GPS information is not, in my view, an offence to dignity of employees that tips the scales against Kone.”

The separate decision regarding ThyssenKrupp’s tracking practices also arrived at similar conclusions.

This isn’t the first time that BC’s privacy commissioner has ruled on GPS tracking – there were two notable occasions last December and in February this year. In each case, the commissioner sided with employers.

According to Vincent Gogolek, executive director at the Freedom of Information and Privacy Association, the privacy commissioner is “pushing the limits of the law. The tracking of somebody in a company or government-supplied vehicle is one thing, but when it’s a cellphone, then it’s something that’s actually on your person as you walk around. We’re not starting to get pretty close to the line.

Gogolek also said that the cases bring up the need for a fresh debate on the limits of privacy in a world where it has become exceedingly easy to track anyone’s location. This certainly is a reality that wasn’t considered when the province’s privacy legislation was being written.

“The law is more than ten years old now. It may be a situation where we have to look at this and say, ‘Are we comfortable with this?’”

Brief Background

GPS, or “global positioning systems,” are more commonly being used in the management of vehicle fleets, or to track employee movements. This technology is widely implemented in the workplace to assess productivity, manage costs, protect assets and employees and reduce liability.

Privacy commissioners and courts in Canada are only beginning to consider the impact of GPS technologies. For the most part, privacy law is rather silent on the issue of GPS, though it is obvious that general privacy law principles will apply to how an employer collets personal information through GPS systems.

According to the BC Civil Liberties Association, the following are general requirements for GPS use by employers:

  • For private sector employers, the collection must be “reasonable and appropriate in the circumstances.” For BC government employers, the collection of such information must be expressly authorized under a BC law, collected for law enforcement purposes or must relate directly to and be necessary for an operating program or activity of the public body. For federal government employees, the collection must be directly related to an operating program or activity of the institution.
  • Only the personal information necessary for the particular purpose should be collected, not more.
  • Once collected, the organization, government body, or government institution is required to protect the personal information and keep it secure from unauthorized access, use or disclosure.
  • Individuals have a right to request access to their personal information and to request correction of their personal information.

Summary

The British Columbia Office of the Information and Privacy Commissioner decides to protect the rights of two employers using GPS tracking technologies to monitor employees, despite complaints to the contrary. According to the August 2013 ruling, employers are permitted to use tracking technologies to determine the whereabouts of workers.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/Canada (CIPP/C), a privacy professional should be comfortable with topics related to this post, including:

  • Privacy commissioners – provincial privacy commissioners (I.A.c.i.1.b.)
  • Personal information Protection Act of British Columbia (II.A.c.)
  • Privacy incidents – trends in commissioner expectation (II.B.g.i.)
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