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EMPLOYMENT LAW
Feb 25, 2013

Keeping tabs on company equipment

Tracking employee use of company equipment, vehicles after hours raises privacy concerns
    

By Jeffrey R. Smith

It’s usually a good idea to keep track of your stuff, especially if you lend it to somebody and want to make sure you’ll get it back. The same applies to employers who may own equipment, vehicles and other items that employees use in the course of their jobs.

While big ticket items like vehicles and heavy equipment aren’t nearly as likely to get pilfered as office supplies, it’s not unheard of for employees to “acquire” certain equipment from the workplace. And when it comes to things employees can leave the workplace with, such as company vehicles, employers might want to make sure employees aren’t using them for personal reasons — assuming company policy prohibits that.

But if an employer wants to monitor the use of company property by employees outside of the workplace, there can be a conflict with employee privacy and personal information. What employees do outside of the workplace is the employer’s business during working hours, but what about after hours? If an employee takes company property home after work, how much information is the employer entitled to regarding the employee’s activities that may involve the use of that property?

It was common practice at Otis Canada, an elevator construction and maintenance company based in Toronto, for employees who went out on maintenance calls to take company vehicles home after work so they could head directly to calls the next day. It was generally accepted employees could run small personal errands in the vehicles, such as picking up groceries on the way home. Either way, the company had no way of knowing what employees did with the vehicles when they finished work.

In 2009, Otis installed devices in the vehicles that recorded when they were turned on and off. The devices also had GPS locating capabilities, but this feature wasn’t activated. The company emphasized its policy prohibiting personal use of company vehicles now that it was able to track when the vehicles were being used. The union protested, claiming the devices violated employee privacy by tracking what they were doing after work and was a unilateral change in the terms of employment without consultation.

However, the Ontario Arbitration Board found — because the devices only tracked vehicle use and not location — actual employee activities remained unknown. The board also found the employer had a right to keep track of the use of its assets and the new enforcement of an existing policy wasn’t a unilateral change. It just meant Otis was now able to actually enforce its policy.

Would things have been different if the location tracking had been activated and the company was able to record where employees went in the vehicles in addition to when they were used? If location tracking was on, employees still could have avoided Otis knowing where they were going after hours by simply complying with the policy to not use company vehicles — which was the point of the policy.

It would essentially be an employee’s choice to be tracked after hours if she decided to use a company vehicle.

How much information about an employee’s activities with company assets should an employer be allowed to collect? Do an employer’s property rights outweigh employee privacy rights, or vice versa?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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