PIPEDA and the Use of GPS by Employers

By Jamie Knight and Brian MacDonald

With new technologies come new challenges to the privacy of individuals. This is especially true in the workplace, where new technologies have been introduced to increase safety, productivity and efficiency. Unfortunately, these workplace technological improvements often come at the expense of the privacy of employees. This is particularly applicable to the use of Global Positioning Systems (GPS) by an employer to track the movements of its drivers and other employees.

GPS systems have not received a great deal of scrutiny under privacy legislation but have been the subject of several decisions under the Personal Information and Protection of Electronic Data Act (PIPEDA).

Reliability

In addressing the privacy issues surrounding GPS, privacy commissioners have consistently supported the use of GPS for purposes of efficiency and productivity, while rejecting its use for the purposes of employee management.

It should be noted that the reliability of GPS technology has been generally upheld. In Vaughan (City) vs. Canadian Union of Public Employees, Local 905 (Pileggi Grievance) [2009] O.L.A.A. No. 276, the employer sought to discharge a by-law enforcement officer for a number of infractions, which were recorded by the GPS system in the employee’s vehicle. The union argued that the GPS technology cannot be used reliably to tell how fast employees are travelling or where they are going and is therefore inadmissible. In rebuttal, the employer called Andrew Moore, the CEO and co-founder of Grey Island Systems, a firm that pioneered GPS, to explain the technology. After Moore and counsel had a detailed discussion about the science behind GPS technology, the arbitrator decided that GPS evidence is reliable and, at least on that basis, admissible. 

Productivity

In PIPEDA Case Summary #2006-351, the commissioner made a finding with respect to whether it is acceptable for employers to use GPS in the vehicles of its employees. The complaint concerned the installation of GPS systems in a telecom company’s field vehicles and its potential use for monitoring employee performance. The stated purpose of the systems was to manage workforce productivity, ensure employee safety and manage its assets, but the employer acknowledged it would be inclined to use the GPS to investigate time fraud and complaints about employee driving habits but was only one of many tools to assess employee performance. In addition, the employer stated that there would be no real-time monitoring of GPS for disciplinary purposes.

While the commissioner accepted that GPS is appropriate to address issues of productivity, she did express concern about using the GPS to “continually monitor” its employees. In order to prevent this, the commissioner accepted the employer’s policy regarding GPS utilization, which limits the use of GPS, in performance management only, to situations where there has been a complaint from the public, where the company is investigating complaints raised internally and to deal with productivity issues.

The issue of the appropriate use of GPS in the vehicles of employees was revisited as recently as 2009 in PIPEDA Case Summary #2009-011. There, the employer had installed Mobile Data Terminals, which contained GPS devices in all of the vehicles used by its employees. The complainant employee alleged that the employer was improperly collecting personal information without having obtained consent. In particular, the complainant was concerned that the employer was using the GPS to keep track of his time and route, and ensure he did not take improper breaks or lunches. The employer alleged that it was using the GPS, not to manage its employees, but to provide efficient service to its clients.

To that end, the employer retained the information gathered by the devices for only three months and accessed the information only if there were a complaint from a client or for safety reasons. The commissioner noted that the purposes for the collection were the same as those alleged by the employer in PIPEDA Case Summary #2006-351.

Defining acceptability

The theme arising from these two cases is around employee management, not the validity of GPS technology. In both of the decisions, it is the employer’s avowed policy of not using GPS for performance management purposes that renders it acceptable. To date, there has been no decision by the privacy commissioner addressing an employer who seeks to use GPS for performance management or disciplinary purposes; however, the general thrust of the two existing decisions indicates that such employers may have more difficulty complying with PIPEDA. The key case, which surely lies ahead, will be where the employer uses the information provided by GPS to discipline an employee even though it is accepted that GPS is primarily used for other appropriate purposes.

Jamie Knight is a partner in the Toronto office of Filion Wakely Thorup Angeletti LLP; Brian MacDonald is an associate in the same office.