To some, it might sound a bit like the boss playing Big Brother: using GPS in vehicles or cellphones to track company employees.
But according to three rulings by B.C.'s Information and Privacy Commissioner – all of them involving elevator repair companies – telematics is the modern equivalent of punching a time clock. However, that doesn't mean employers have an unfettered right to monitor worker activities, said Nicole Skuggedal, a lawyer specializing in labour law with Lawson Lundell LLP. Using technology to monitor employees is fraught with potential breaches of privacy laws, so employers need to be careful they don't use it inappropriately. Unfortunately, the lines are not always clear.
The privacy commissioner's trio of rulings in 2013 helped clarify the boundaries, however, especially with respect to monitoring mobile workers – from truckers to the guy who fixes office printers.
The complaints were brought to the commissioner by the union representing workers with three elevator and escalator companies: Kone, Thyssenkrup Elevator Canada Ltd. and Schindler Elevator Corp.
In two of the cases, GPS was used in company vehicles. In the Kone case, the tracking was done with company cellphones.
In the Schindler case, an employee was fired after GPS and engine-monitoring technology in his vehicle showed he was using the company vehicle for personal use and was not working for 36% of the time he was being paid to work.
The union argued it was a violation of the Personal Information Protection Act to track workers, even during work hours.
In all three cases, the privacy commission disagreed. Because the tracking was not surreptitious (the employees were aware they were tracked during work hours), and because the tracking was not continuous (information was gathered in snapshots), the commissioner ruled it was a reasonable use of technology.
In the Kone case, workers were expected to enter start and stop times on their cellphones so that the tracking information did not transmit when they were off duty or on breaks.
When it came to the way in which the three companies used the technology and informed employees about its use, the general conclusions were the same: using telematics to track mobile workers during work hours is not an invasion of privacy, provided they know it is happening.
"Like other employers, Schindler has an interest in ensuring that its employees actually work the hours they are supposed to and for which they are paid," Elizabeth Denham, B.C. Information and Privacy Commissioner, concluded in the Schindler complaint.
"It is beyond controversy that most employers keep some track, through various means, of whether their employees are working the hours for which they are paid."
Chris Jackson, vice-president of government operations at Web tech Wireless, said it's not unusual for employees to complain when a company first implements telematics.
"They always try to push the Big Brother button."
But he added that improved safety and fleet efficiency is the main reason companies use the technology.
Privacy laws prohibit employers from tracking worker movements when they are off duty. But in all three cases, the data was used only when employees were working or supposed to be working.
Employers who use any kind of technology to monitor employee work activities need to ensure their employees are fully informed of the monitoring and told when and where it will happen – it cannot be surreptitious.
Despite the recent rulings, Skuggedal warned that employers still need to tread carefully when using technology to monitor workers' habits.
Employers need a very compelling reason for checking any personal email, for example, even when it is sent or received on a company computer via a company email account.
"I think we have a lot of employers that think, 'It's our company computer, you're using it, we have full rights to view it,'" Skuggedal said. "And that's not necessarily the case.
"The Supreme Court said – and the Ontario Court of Appeal had said before that – that employees have a reasonable expectation of privacy in personal things they store on their workplace computer, including personal email and browsing history."
