Privacy in the Workplace; Employer Collection of GPS Information from Cell Phones Issued to Employees

| December 3rd, 2013 | No Comments »

In this new digital age, concerns about privacy in the workplace are becoming increasingly important. Since privacy legislations in several Canadian jurisdictions are  similar, although not an Ontario decision, a decision from the Office of the Information & Privacy Commissioner for British Columbia may prove instructive.

The issue in Kone Inc. (Order P13-01) (2013 BCIPC 23 (CanLII)) involved the collection and use of Global Positioning System (“GPS”) information from employer-issued cellular phones to its elevator service maintenance employees. The employees in question generally worked alone and were dispersed across wide geographic areas.

The employees complained that the information collected was in contravention of BC’s Personal Information Protection Act.

Mechanics were to transmit to the phones information about when they were “on duty” and “off duty” as well as when they arrived or left client sites. The GPS information was only sent to the employer, Kone Inc., when the mechanic was “on duty”. The phone would be set “on duty” during the workday, save the times when the employee was on break.  The transmitted information would be downloaded to Kone Inc’s computer system.

Kone stated that the information collected was for workplace management purposes, and did not violate privacy laws.  The employees disagreed, stating that the information was “personal information” and argued that the employer should disable the system and use a reporting system similar to that used prior to the introduction of phones.

The IPC reviewed the complaint and found that the manner, amount and type of information collected was reasonable use of management rights.  To address employee concerns about privacy, although finding the employer had complied with and acted in a manner consistent with the Personal Information Protection Act, the Commissioner recommended that KONE “create a specific policy for the phones that comprehensively set out the purposes for which the GPS information may be collected, used or disclosed. . . which could provide existing (and new) employees with a single, clear and continuing source of notice of KONE’s purposes for the technology”

This decision demonstrates that employer decisions on “technological monitoring” are given reasonable interpretations so as to not interfere with business operations. No doubt the balancing test between employee privacy rights and employer rights to manage the workforce will continue to evolve as technology develops.

All situations are different, and the above is not to be taken in whole or in part as legal advice. If you have questions about your particular situation, feel free to contact the lawyers at Whitten & Lublin.

Is your boss spying on you at and off work?

| November 12th, 2012 | No Comments »

How much privacy can be expected at work wherein everyday we are using our employer’s computers and equipment?  Employers want to make sure that they are receiving their return on investments when collecting basic information about their employees pay, attendance or benefits, and they want to be able to ensure that work is being done efficiently and safely.  Though, it is normal to give up some privacy while working for someone else, how far can employer’s watchful eye go and do employers have right to spy on workers?

Toronto Employment Lawyer, Daniel Lublin explains in his latest Globe and Mail article that generally, it is not illegal in Canada to hire a private investigator to spy on an employee who says he or she is too sick to work.  Especially if it is found that the same employee is performing physical tasks that they say they cannot perform while at work.

Most often if there is a problem with theft or security, employers will install security cameras focused on a specific location; which is not illegal.  They have the right to monitor their staff in some situations, but only if this is done in good faith and where there is a reasonable belief that an offence is being committed.  However, if there is no good reason for a camera and it is being installed without employees’ knowledge, the best first step would be to consult with an employment lawyer to discuss the employer’s new policy and see what options one might have.

Employers often monitor employees’ workplace computers, their e-mails and their Internet usage to ensure the devices are not being misused.  New fingerprinting technology is enabling employers to use more sophisticated machines and scan employees’ fingerprints in order to monitor their absence during the work day.  Due to the absence of stronger privacy laws there is no easy way to prevent the employer from installing those machines.

As part of the hiring process, job candidates’ public online profiles are often reviewed by employers and recruiters.  Provided that hiring decisions are made on the basis of legitimate job qualifications that are thereby revealed and not on any human rights grounds, there is currently nothing illegal about this practice, although some may view it immoral.

But whether or not privacy is protected by law or contract, respecting privacy in the workplace makes good business sense.

Daniel Lublin’s article and some more information about privacy law can be found in his Globe and Mail column.