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Vince Talotta/Toronto Star
The Toronto District School Board will be putting GPS tracking devices in all trucks and vans of maintenance workers to catch workers goofing off.
The moves follows a Toronto Star investigation that showed widespread problems and high costs paid by the board for jobs performed by the Maintenance and Construction Skilled Trades Council,
But the use of GPS technology this way raises issues under privacy law. Employers can only collect certain kinds of data and the information collected must be used for legitimate business purposes.
The federal Privacy Commissioner found that managing workforce productivity and improving customer service are two acceptable reasons for GPS use. These are such things as dispatching and routing employees to job sites, notifying drivers of schedule changes and providing accurate arrival times for clients. In these circumstances employee consent was implied. One case is from 2006 and the other case is from 2009.
The decisions also say that GPS data should not be used as a routine employee management tool. The is purpose must be clear to employees and there must be a policy that outlines the rules for warnings and progressive monitoring. This typically does not include real-time GPS tracking of the employee’s daily routine – making sure he doesn’t take a break or lunch, timing every pick up and drop off and tracking route and travel time.
Routine audits of GPS data to check for compliance with company policies are probably an acceptable use of GPS technology, although it has yet to be tested in the courts. Employers can also use GPS data without permission after the fact for to investigate an accident or if items are stolen from the vehicle.
There is a fine line between acceptable and unacceptable GPS monitoring. What might help? A widely communicated, written GPS policy. This policy might include the method of discipline or penalties for breaches of company policy. That may give the employer considerably more latitude, providing the company can show the GPS was the least intrusive manner of collecting reliable data.
Union employees may be able to challenge GPS surveillance as a violation of their collective agreement. Employees of federally-regulated workplaces and employees in Alberta, British Columbia and Quebec can also file privacy complaints. Ontario and the other Canadian provinces do not have privacy legislation or a privacy commission.
An Ontario decision in January might let employees sue for improper use of GPS or other privacy invasive surveillance technology. But realistically, it isn’t practical for individual employees to challenge GPS use in the courts.