A series of developments from the B.C. Privacy Commissioner’s office (“OIPC”) support employee tracking based on the circumstances.
ThyssenKrupp Elevator (Canada) Limited (“TKE”) joins a list of elevator companies that includes Schindler Elevator Corporation (Order P12-01) and Kone Inc. (Order P13-01) who have attracted the attention of the BC OIPC for their use of technology to monitor their mobile workforces.
But an employer doesn’t need to be in the elevator business to learn from these Orders. They will be of interest to any employer who monitors or proposes to use technology to monitor a mobile workforce.
Similar to the facts in Schindler, TKE’s technology comprises GPS and other capabilities that permit TKE to monitor employee location and vehicle operation in near real-time. TKE’s technology can generate e-mail alerts following certain triggering events, such as when an employee leaves his or her expected work area – and TKE may retain the collected information to generate future reports.
The complainant, a TKE employee, alleged that in connection with its use of this technology TKE was in breach of B.C.’s Personal Information Protection Act (PIPA).
The Adjudicator then found that TKE’s collection and use of employee personal information without consent was permitted under PIPA sections 13(2)(b) and 16(2)(b) of PIPA because TKE linked its collection and use to reasonable purposes related to the establishment, management and termination of employee relationships
TKE’s reasons included: payroll verification; confirmation of compliance with company policies; vehicle maintenance scheduling; ensuring safe driving; improving customer service; identifying inefficiencies; improving employee safety; and optimizing dispatch.
Previous orders have clarified that the collection and use of employee personal information must also be reasonably collected and used. Relevant criteria for this test include: the sensitivity and volume of the collected information; the likelihood that the collected information will support the stated purpose for collection; the manner of collection and use of the collected information; and the availability of alternatives.
Here, TKE’s collection and use was reasonable. The collected information was not particularly sensitive and supported the stated purposes; the use of the technology was a reasonable alternative as in-person supervision was impractical; the technology was not covert; and the collected information was not continuously monitored by TKE, but checked by TKE in response to a triggering event or dispute.
However, TKE had not met its notice requirements under sections 13(3) and16(3) of PIPA because TKE had not disclosed all purposes for which the employee personal information was collected.
TKE was directed to stop collecting and using the information until such time as it had given sufficient notice to employees, as determined and confirmed in writing by the Adjudicator (Order P13-02).
In both the Schindler and Kone cases, tracking service vehicles using GPS and engine monitoring technology was considered reasonable for the purpose of performance monitoring and safety.
Clearly, what employers are allowed to do boils down to a test of “reasonableness,” meaning why the tracking is being done, how detailed the tracking is and whether it extends to employees’ private lives. Given the range of privacy questions raised by employee tracking, it is nearly impossible to determine a set rule for GPS tracking in every case. Every case would require an analysis of whether the collection and use is appropriate. Certainly the series of Orders from the B.C. Commissioner gives important guidance in implementing the test of reasonableness with respect to employee monitoring an tracking.