Privacy, Employment & Vehicle Telematics
How can employers use locational information without running afoul of data protection laws? No doubt the question will appear more prominently in queries to lawyers as we evolve into a more technologically mobile society but the first place it comes up is in the context of motor vehicle telematics.
“Telematics” refers to the merger of telecommunications technology and infomatics. You might have seen ads from insurance companies offering rate discounts in exchange for driving habit information provided using telematic devices. I raise the subject because of recent reports that the use of vehicle telematics triggered an investigation that resulted in the firing of 29 employees.
According to this Globe and Mail report, City of Hamilton management began to suspect something when they examined the GPS records of city vehicles and found asphalt repair crews in places they were not supposed to be. This led to surveillance and the eventual discovery of the offending conduct. If the union challenges the mass dismissal it will be interesting to see if a privacy argument gets raised.
Privacy and telematics has been addressed periodically by Privacy Commissioners in Canada. While these decisions acknowledge a degree of “privacy invasiveness”, at the heart of the cases is a concern about the use of telematic information for employee monitoring and evaluation. Not to suggest that employers have crossed into surveillance territory but it appears in using telematics one can certainly see the border.
At the federal level, Case Summary 2006-351 was the first instance where the use of telematics was challenged under PIPEDA. In that case, several employees of a telecommunications company complained about the installation of GPS in their work vehicles, alleging improper collection of personal information (i.e. their daily movements during work hours) and a failure to obtain consent. The company’s position was that the GPS information related to a vehicle, not a particular individual, but acknowledged that GPS enhances a manager’s ability to learn the whereabouts of employees and to monitor certain aspects of their use of company vehicles. It viewed this as no different than in an office setting and claimed it was not an invasion of privacy.
The company indicated a number of purposes for installing GPS: the need to remain competitive, workforce productivity, safety, and asset protection and management. The Assistant Commissioner sagely noted that another purpose, though not explicitly stated, was employee management. She nonetheless accepted most of the company’s purposes for collecting and using personal information gathered by GPS and found that implied consent was present for these purposes. Of note in the Finding:
There is no question that, generally speaking, there is some loss of privacy attached to the use of GPS in a vehicle that an employee uses in the course of carrying out his or her duties. Whereas before, the employee’s whereabouts at any given moment were not necessarily known, with GPS they are, relatively speaking. At least what is known is the location of the vehicle the employee is using…
While using GPS to track a vehicle is not overly privacy invasive, routinely evaluating worker performance based on assumptions draw from GPS information impinges on individual privacy.
The issue arose again in Case Summary 2009-011 with the same result. Here, the complainant was a driver employed by a contractor to provide door-to-door transportation services on behalf of a municipality to mobility-impaired residents. When the city began using a GPS coupled with a Mobile Data Terminal (MDT) on vehicles operated by the contractor, the complainant alleged the improper collection of personal information for job efficiency purposes. While personal information was collected, the complaint failed on the basis that the employees had provided an implied consent and there was no evidence that the MDT/GPS system was used for employee management.
The most recent and extensive discussion of the subject of privacy and telematics can be seen in Order P12-01, Schindler Elevator Corporation, issued by the Privacy Commissioner in British Columbia in December 2012. The facts are simple (i.e. the installation of telematic equipment) and the arguments are essentially the same as made at the federal level. Towards the end of a lengthy and detailed Order, Commissioner Denham concluded:
In any event, I am not persuaded that any offence to the dignity of employees tips the scales against Schindler. I say this given the nature of the data being collected and the rules under which information is accessed and used by Schindler. I am particularly influenced by the fact that the GPS-derived location information is not continuously monitored. If an organization were to engage in continuous, real-time monitoring of employees’ whereabouts, during or outside work hours, for employment management purposes, I would want to look very carefully at the situation.
Having considered these factors and the circumstances of this case overall, I am persuaded that Schindler’s collection and use of employee personal information for the purposes, and in the manner, described above is reasonable and is authorized under PIPA.
So the use of telematics, within reason, is permissible and reconcilable with Canadian privacy law. However, there’s not a lot of specific guidance as to how best to use telematics. It would seem that “mixed use” (i.e. personal as well as work use permitted) is an area of where an express employee consent would be desirable and with some mechanism to disable the monitoring at the employee’s option. (Doing so during working hours clearly being a red flag for employers). It’s also likely that where there may be a legal obligation to monitor vehicles, this would likely override any issues with respect to the collection of personal information.
Claiming telematics is “about the vehicle” clearly does not go very far these days so a more sophisticated policy approach is required. Given the attention it received in Schindler, it would also seem a GPS or Telematics Policy is also a necessity to provide the necessary notice and indicate the parameters surrounding the monitoring. While this may or may not involve an acknowledgement, some evidence should exist to ensure that the employees are aware of the policy.