B.C. Information & Privacy Adjudicator, Ross Alexander, recently released his Orders in KONE Inc., 2013 BCIPC No. 23 ("KONE"), and ThyssenKrupp Elevator (Canada) Limited, 2013 BCIPC No. 24 ("TKE").
In KONE and TKE, the Adjudicator adopted and applied the reasoning of the B.C. Information & Privacy Commissioner's decision in Schindler in which she considered the application of the B.C. Personal Information Protection Act ("PIPA") to an employer's monitoring of GPS data from corporate vehicles. KONE, TKE and Schindler are companies that repair and maintain elevators and escalators. Each company had implemented GPS-enabled data collection systems to monitor employees while they use corporate vehicles (and cell phones, in the case of KONE) at work. The Complainants were all maintenance and repair mechanics who, during the course of their employment with the respective companies, travelled to various customer sites to perform repair and maintenance work on elevators and escalators. The Adjudicator reached different conclusions in KONE and TKE regarding compliance with the notice requirements under PIPA based on how the technologies were rolled out to the employees, including the Complainants. Therefore, read together, these Orders provide useful lessons for employers on what to do when introducing similar technologies to their own workforces.
The Facts in TKE
TKE maintained a fleet of vehicles that it assigned to its mechanics to use in performing off-site maintenance and repair work and they installed the same technology used in Schindler - a GPS and engine monitoring system called "Fleet Complete" - to monitor their fleet of vehicles. The system collected a variety of information about the vehicle use such as distance travelled, speed, incidents of harsh accelerating or braking, idling time, when the vehicle was turned on and off, and location of the vehicle. There were thus two types of information gathered by Fleet Complete: GPS data about the location of the vehicle and engine status data about the operation of the vehicle.
The employer put forward several justifications similar to those advanced in Schindler for employing Fleet Complete, specifically, the technology allowed the employer to dispatch more efficiently, schedule vehicle maintenance more efficiently, identify and address unsafe driving habits, track employee time at job sites, help locate employees who were unaccounted for, and locate lost or stolen vehicles. The employer maintained that it did not continuously monitor this information but instead programmed Fleet Complete to generate "exception reports" which summarized any occasion where a rule or policy appeared to have been broken.
The Facts in KONE
KONE also maintained a fleet of vehicles assigned to its mechanics to use in performing off-site maintenance and repair work. The GPS technology it used was embedded in the employer owned cellular telephones given out to its mechanics, including the Complainant. The system collected information about the location of the Complainant at any given time and this information was used to verify time reporting and to operate the employer's "Dynamic Dispatching" system. However, information was only collected when the mechanic's manually set their phones to "on-duty". When the phone was set to "off-duty", such as between shifts or during a lunch break, then no information was collected.
The employer stated the purpose of collecting the GPS information was to ensure accurate client invoicing, act as a time clock for employees to verify employee attendance and payroll, to optimize client response times, and to quickly locate employees in the event of an accident or emergency. Similar to TKE, the employer maintained that it was not continuously monitoring the GPS information but used it to produce weekly "accuracy reports" comparing the Complainant's reported location with the GPS information. Only where there was a significant discrepancy would the employer be alerted and the information be examined further.
The Decision in TKE
Following Schindler, the Adjudicator determined that the information collected constituted employee personal information, but that its collection and use was reasonable for the purposes of establishing, managing, or terminating an employment relationship and therefore acceptable under PIPA. Specifically, the Adjudicator accepted the employer's submission that it has a legitimate interest in ensuring that employees are driving company vehicles lawfully, and in compliance with company policies, and to verify time reporting of mechanics. Further, there was no evidence that the employer was using the information for any purpose other than to manage the employment relationship.
The Adjudicator made several notable comments:
- He explicitly rejected the approach advocated by the Complainant that the least privacy intrusive alternative must be followed regardless of reasonableness or cost;
- The fact that the given information collected related to the mechanics' employment duties and operation of company vehicles lessoned the sensitivity of that information;
- The fact the employer was not continuously monitoring the information generated by Fleet Complete was an important factor;
- There was no practical alternative to Fleet Complete that would fulfill the objectives identified by the employer; and
- Monitoring and questioning employees about compliance with company rules and use of company property is commonplace and the use of the GPS enabled technology to do so is not an affront to the dignity of the Complainant.
However, the Adjudicator concluded that the employer failed to give appropriate notice of the collection and use of employee personal information as required by PIPA. While the employer had given general notice to the mechanics that Fleet Complete was collecting "personal information", it failed to give specific notice that it was collecting engine status information such as incidents of harsh braking and rapid acceleration as well as the fact the information generated by Fleet Complete was being used for employee attendance and payroll verification.
The Adjudicator accepted the employer's submissions that the appropriate remedy for failing to fully meet the notice provisions under PIPA was to order that the employer provide proper notice1.
The Decision in KONE
The Adjudicator also followed and applied Schindler in KONE, determining that the information collected constituted employee personal information, but that its collection and use were acceptable under PIPA. The analysis applied by the Adjudicator in KONE, and the conclusions reached, were largely similar to those applied in TKE. However, there are several comments of note in the KONE Order:
- The Adjudicator held that the fact the GPS was embedded in the phone used by the Complainant meant the information collected was more sensitive (although ultimately not unduly sensitive) than the information collected about company vehicles by Fleet Complete; and
As with TKE, the Adjudicator recommended that the employer develop a policy which applies specifically to the GPS enabled phones setting out the purposes for which the GPS information may be collected, used or disclosed.
Lessons from TKE and KONE
TKE and KONE reiterate the finding in Schindler that an employer's monitoring of the use of its business assets by employees will usually be considered a collection and use of "employee personal information" (at least by the B.C. Commissioner and Adjudicators2 ) and thus will be protected information under PIPA. As with Schindler, a take away from the Adjudicators' Orders in TKE and KONE is that employers using GPS and other electronic monitoring equipment should be careful to ensure that the information being captured relates only to the employment relationship and does not inadvertently capture private information not related to this relationship.
Further, TKE and KONE emphasize that how a company uses GPS or electronic monitoring information is important. Both TKE and KONE were not continuously monitoring the GPS information and instead had set up systems where the employer was alerted only when certain actions or behaviours were detected. This was an important factor in the Adjudicator's analysis.
Meanwhile, in Québec...
There is a civil claim pending in the Superior Court of Québec3, where an action has been brought by the International Union Of Elevator Constructors against KONE seeking injunctive relief against the company's "directive and decision" to impose on its employees the carrying of PDAs with GPS technology The Union is alleging that the "directive" is illegal because it is contrary, inter alia, to an employee's privacy rights. Judgment has yet to be rendered in this Action.
Specific Québec legislation will be considered by the Superior Court of Québec in this proceeding - article 43, paragraph 2 of Québec's Act to Establish a Legal Framework for Information Technology states: "unless otherwise expressly provided by law for health protection or public security reasons, a person may not be required to be connected to a device that allows the person's whereabouts to be known."
The underlying theme from the Schindler, TKE and KONE Orders is that employers should strategically and carefully plan the introduction of GPS or electronic monitoring into the workforce in order to comply with PIPA or other applicable privacy legislation. Careful thought should go into how the technology will operate, what types of information it will collect, whether the information collected is reasonably connected to a legitimate employment management purpose, and how to properly give notice to employees.
Members of Davis LLP's Privacy Law Compliance Group are experienced in advising clients with respect to these complicated issues and would be pleased to assist your organization.
1 The Adjudicator has since confirmed that TKE subsequently provided the necessary notice to employees.
2 See Otis Canada Inc. v International Union of Elevator Constructors, Local 1,  B.C.C.A.A.A. No. 121 where the arbitrator reached a different conclusion.
3 Union internationale des constructeurs d'ascenseurs, local 89 c. Ascenseurs Kone (Court File No. 500-17-064932-117).
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