Employer issued smart phones and other electronic devices are commonplace. One benefit of these devices is that they can record and provide various tracking information. Service providers and "apps" can provide location information. Employers have good reasons to use these tools, including loss prevention and monitoring productivity. Can employers legally track employees' smart phones with GPS?
Elevator service company, KONE Inc., uses GPS on cell phones to monitor the locations and productivity of its employees. Some KONE employees complained about the practice to the BC Privacy Commissioner, who held an inquiry. The adjudicator found determined that KONE was collecting and using the GPS information in compliance with the law: Order P13-01.
KONE has a mobile workforce. Mechanics generally work alone and are paid hourly. KONE assigned particular cell phones to each mechanic so the company could track the employees' work. The particular program used by KONE allows each employee to set the phone to "on duty" or "off duty." While on duty, GPS information is sent to KONE's service provider but that information is only transmitted to KONE when the mechanic inputs a site departure. No information is transmitted when "off duty." Once KONE has the information, it uses it for a number of things, including: tracking locations of on duty mechanics, and travel time; generating weekly reports; planning routes; prioritizing work assignments; providing work updates to clients; and contacting mechanics for safety purposes if the phone has been stationary for more than 30 minutes.
In the inquiry, the adjudicator found that KONE's purposes for collecting and using the information were reasonable to manage the employment relationship. KONE has a legitimate interest in knowing where its employees are during work hours, maximizing efficiency for dispatching and routing, and ensuring employees are working the hours for which they are paid. The adjudicator was of the view that time recorded using GPS is similar to a swipe card to record work attendance or being directly observed at a work station.
An important fact in this case was that the GPS information is only collected by KONE when the employees set the phone to "on duty." Thus, the adjudicator determined that the privacy of the information was diminished. It also meant that KONE was not collecting more information about its workforce than necessary. KONE notified and educated its employees on the GPS system and had appropriate privacy policies and procedures for handling the information.
The employees argued that the collection and use of GPS information for employee management is an offence to the employees' dignity and detrimental to the employment relationship. The adjudicator determined it was reasonable for KONE to use the information for performance management, such as where it demonstrated atypical activity and permitted the employer to make follow-up inquiries to determine whether the mechanic is meeting his or her employment obligations.
KONE is a valuable example for employers who have good reason to monitor their employees' location and work using emerging technology such as GPS. It provides some framework on the parameters of an effective and compliant program. The result probably would have been different had KONE not, for example, reasonably limited the information it collected, had legitimate business reasons for the program, and notified and trained its employees.
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