Please enjoy this post from guest blogger Robert Smithson.
WHAT’S SO PERSONAL ABOUT EMPLOYEES’ WHEREABOUTS?
The advent of personal information legislation across Canada has provided employees with a mechanism to challenge their employer’s monitoring of their activities. In at least one context, however, employers’ use of monitoring technology has been upheld.
Employers operating fleets of vehicles surely appreciated the development of global positioning systems (GPS) and mobile data terminals (MDTs). The effective use of such monitoring systems has allowed employers to hone the efficiency of their mobile fleets.
They also, of course, have allowed close monitoring of the drivers’ whereabouts and (no surprise here) employees have sought ways to push back against that form of electronic surveillance.
A decision released by the Office of the Privacy Commissioner of Canada has addressed a complaint by a driver of a municipal transportation service available to mobility-reduced citizens.
The driver objected to the installation of the MDT and GPS devices on vehicles he drives. He alleged that the employer was improperly collecting his personal information, namely his daily movements while on the job.
Specifically, the driver alleged that the transit organization was using MDT/GPS for the following reasons: to keep track of his time throughout the day; to make sure he did not take a break or lunch; to time every pick-up and drop-off, and; to track his route and travel time.
The Privacy Commissioner determined that the information in dispute was collected and used by the employer strictly for an appropriate purpose – that of providing an efficient service to clients.
According to the employer, the purpose for using MDT/GPS was to increase efficiency and the quality of the service. For example, an MDT immediately indicates to drivers any scheduling changes, eliminating the need for dispatchers to contact drivers directly.
The GPS system was used for route scheduling and service adjustments, and for more accurate vehicle-arrival information for clients. Emergency service was accessed simply by pressing a button, as the GPS can give the vehicle’s exact location.
The federal Personal Information Protection and Electronic Documents Act (PIPEDA) allows an organization (subject to certain restrictions) to collect, use, or disclose personal information for purposes that a reasonable person would consider are appropriate in the circumstances.
The Privacy Commissioner deemed the personal information collected by the employer not to be sensitive and determined that it was information the employer had legitimate interests in collecting (in order to effectively deliver their transportation service). The Commissioner also noted that the collection of the information was not particularly privacy-invasive.
The Commissioner repeated the questions which must always be asked to determine whether the use of technology to collect personal information is in compliance with PIPEDA:
- Is the measure demonstrably necessary to meet a specific need and is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
There was one element of the findings made which left me scratching my head. The Commissioner’s reasons are devoid of any apparent analysis of whether the data being collected by the employer via the MDT and GPS systems amounted to “personal information” for PIPEDA’s purposes.
That, of course, is the threshold question which must be answered whenever a person complains about the collection, use, storage, or disclosure of his or her “personal information”. In this instance, I fail to see how any of the data collected by the employer amounted to personal information.
The data pertained to the location of the employer’s vehicles. Even if that data also indirectly suggests the whereabouts of employees, in my view that fact doesn’t render the information “personal” to the employee.
Put another way, I fail to see how an employee’s whereabouts, while on the job, constitute his or her “personal information”.
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.