BC Business
Employee privacy in B.C. | BCBusinessMobile workforces are ongoing concerns for employers worried about time theft.
When a union representing milk drivers in Vaughan, Ontario, complained of “mechanical spies” and refused to work with trucks equipped with tachographs, devices designed to track a truck’s movements, the province’s labour board didn’t take this complaint kindly. If such surveillance helped manage employees, then it was fine by the law, the labour board ruled. Although the technology has evolved considerably since that decision was issued in 1969, the principle behind the decision carries the same weight today.
While the technology has advanced from tachographs to smartphones, the challenge facing employers remains largely the same: when you’ve got a mobile workforce, how can you be sure they’re on the job without infringing on their right to a degree of privacy?
In October 2013, B.C.’s privacy commissioner issued two rulings that side with companies tracking employees through mobile and GPS devices in company vehicles. An adjudicator from the commissioner’s office cleared ThyssenKrupp Elevator Canada and Kone Inc. in complaints from their unions that the employers had violated privacy laws when tracking their employees’ movements via chips installed on vehicles and a GPS feature on staff-issued cellphones. In his decision, adjudicator Ross Alexander noted that these are “reasonable steps to ensure that their employees are working the hours for which they are paid.”
For employers, there are many benefits to tracking staff: besides ensuring the safety of remote workers, GPS tracking can act as a mobile punch clock, facilitate more accurate billing and even preempt litigation in disputes with clients. With a GPS device about the size of a grape that sells for $22, a firm can keep tabs on a company vehicle. Telus’s Fleet Complete product, a real-time subscription GPS tracking system whose use was contested by ThyssenKrupp’s union, starts at $40 a month.
While decisions on tracking software from the federal arbitrator and provincial commissioner favour employers, companies have been called out for not warning staff, or for engaging in surreptitious surveillance. “B.C.’s privacy commissioner doesn’t set definitive rules,” says Nicole Skuggedal, an associate at Lawson Lundell LLP who practises in labour law. “They look at five factors and then they balance the employer’s business interest with an employee’s right to privacy.” Those factors are sensitivity of data, the effectiveness of a monitoring technology (often a GPS signal can replace a punch clock), how the data is collected, availability of less intrusive means, and whether monitoring is an offence to an employee’s dignity.
Clearly communicating surveillance policies to employees is important, and that starts with a formal policy. “Arbitrators have said time and time again in their decisions that if you had a policy about how you were using this information, you would make it a lot more clear,” says Michelle McCann, an associate specializing in labour and employment at the Halifax law firm Stewart McKelvey.
Skuggedal recommends that when employers consider GPS or tracking services such as Telus Fleet Complete, they develop a written policy that articulates what data will be collected, why they are being collected, how they will be used and how they will be disclosed and stored.
Employers should review tracking policies annually, incorporate them into employee training and garner their employees’ signed consent, says Skuggedal.