Canadian HR Reporter

CANADIAN HR REPORTER June 15, 2015 2 NEWS tort under this intrusion upon seclusion tort (in Ontario), in that it's an invasion that would be high- ly offensive to a reasonable person, perhaps. And it may also, if it's a unionized environment, be cause for grievance probably and might offend the collective agreement which would have implied privacy obligations and things like that." When it comes to GPS track- ing on an actual person, there is greater concern, said Fraser. "One can more readily say, 'Oh well, we need to know where our repair trucks are because they're valuable assets and we want to be able to deploy them appropriate- ly,'" he said. "But when your tracking device is in somebody's pocket, you're tracking that person wherever they go and so could there be a legitimate reason why you would want to do that? Perhaps. But, in other circumstances, you could see how it would become more intrusive, and it's all going to be dependent upon reasonableness in the circumstances." And while after-hours track- ing of a personal device may be offside, that's not always the case with a company-owned vehicle, said David Young, a principal at David Young Law in Toronto. "If that's understood that it's only (for work) but the person isn't supposed to use it for other pur- poses, well, it could be reasonable to keep it on for 24 hours a day and that would be acceptable." Background In 2013, three cases in B.C. pro- vided considerable clarity when it came to employee tracking. Each involved an elevator company using GPS tracking, with one, KONE, involving cellphones. e tracking confirmed start and stop times, checked for time theft and vehicle speeds, and also used the information for billing purposes, said Skuggedal. "It wasn't constant monitoring, it would only be after the fact, if there was an incident they'd go back and be able to monitor, so it wasn't constant." In all three cases, the privacy commissioner for B.C. held that it was reasonable for the employer to collect that information. But it had to be employee personal in- formation, meaning "information that's used for purposes of estab- lishing, managing or terminating the employee relationship," she said, adding it was only collected during work hours. "e reason that's important is because you do not need em- ployee consent to collect, use or disclose employee personal infor- mation. at said, it still needs to be reasonable and the employees need to be notified." B.C.'s privacy commissioner said it's about balancing the needs of the employer to have this infor- mation, for legitimate business interests, with the employee's pri- vacy rights, said Skuggedal. And there are five factors to look at for reasonableness. For one, the sensitivity and amount of information. "In this case, they were only recording during working hours," she said. "The cellphone… could be turned off during lunch so it's not capturing any information out- side of working hours. In terms of the type of information, it's not highly sensitive here: where were you, were you working, were you at the right job site, did you speed using the company car?" Effectiveness is another factor, so while the company could su- pervise employees another way, this was a very effective way given the mobile nature of the work- force, said Skuggedal. Also a factor is "manner of col- lection and use," she said, meaning how the information is collected so all employees know about it up- front, it's not covert and a limited number of people have access to the information, with no continu- ous monitoring. e availability of less privacy- intrusive means is another con- sideration, though that doesn't mean it needs to be the least privacy-intrusive, said Skuggedal. "Offence to an employee's dig- nity" is the final factor, which goes back to sensitivity and the amount of information, she said. "If we applied those five factors to the situation in California, as I understand it, someone's being asked to be monitored 24-7, I can't fathom how a privacy commis- sioner in B.C. or Alberta would find that to be reasonable." And even in Ontario, with that kind of continual monitoring, the employee may quit and have a claim of constructive dismissal, said Skuggedal. "You may, in that case, have tort of intrusion upon seclusion. So in that case, what appear to be more egregious acts you would fit into those other categories." Notification In the B.C. cases, notice had to be given to employees, so it wasn't surreptitious tracking, said Young, and it was considered a condition of their employment. "Even though employers like to use that information for literally monitoring what the employee's doing, whether they're going to have a coffee or not, the reasons that are given are usually more general workplace-oriented, which is monitoring the vehicle, watching what the vehicle is do- ing, safety, security, scheduling — stuff like that. All of those have been accepted as reasonable and acceptable under privacy law, broadly speaking." One thing employers should be aware of is the privacy legislation requires employees to be properly notified, said Skuggedal. "Not just 'We're going to do GPS monitoring' but much more detailed: what are we going to use it for, why are we collecting it. So you need to ensure you have prop- er detail in your privacy policy or your GPS monitoring policy." One of the elevator companies, for example, didn't provide such detail and the privacy commis- sioner said it had to stop using the technology until employees were properly notified. "For employee personal infor- mation in B.C. and Alberta, you don't need employee consent, so you wouldn't need every em- ployee to sign off and say, 'I con- sent to you installing GPS on my company vehicle and using it to monitor me during the workday,' but it would need to be reason- able based on those five factors," she said. "If it was collecting information that wasn't employee personal information, you would need consent." Consent in the workplace is ac- tually a bit of a fiction, said Fraser, and it's not necessarily freely given. "So you're telling somebody, 'OK, we're now going to roll out this GPS system to more efficient- ly dispatch you as cycle couriers, here's the purpose, can I have your consent?' What happens if the guy says no? "And so, essentially, what I think the commissioners have come up with is if it's a reasonable work- place policy and it's employed not arbitrarily in the workplace and deployed arbitrarily in the work- place, then it's almost deemed consent. But if it's unreasonable, then you're not getting proper consent." Recent stories posted on www.hrreporter.com. Check the website daily for quick news hits from across Canada and around the world. 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Visit www.hrreporter.com/hr-vendors-guide HR VENDORS GUIDE HR VENDORS GUIDE Are you looking for help with recruitment? Training and development? Recognition? Information on HR professional development and post- secondary programs? Employees must be properly notified "You need to ensure you have proper detail in your privacy or GPS monitoring policy." GPS < pg. 1

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