Off-duty tracking offside, say legal experts

California case involving GPS raises privacy concerns

A California case involving the 24-7 GPS tracking of an employee has many people north of the border wondering if the same situation could happen here.

In a lawsuit filed in the Superior Court of the State of California in May, Myrna Arias made a complaint for several damages, one being invasion of privacy, against her former employer.

As a sales executive and account manager, she and other employees were asked to download an app onto their smartphones in April 2014 that tracked the exact location of the devices.

When questioned, the regional vice-president of sales admitted employees would be monitored while off-duty, according to the lawsuit. But Arias objected, contending it was an invasion of her privacy and likening the app to a prisoner’s ankle bracelet.

In late April, Arias uninstalled the app and, on May 5, she was fired. She filed the suit one year later, contending her whereabouts and conduct while off-duty were private and highly confidential, and a reasonable person would want to maintain that privacy.

Privacy cases will evolve as technology evolves but when it comes to Arias’ situation, it’s hard to fathom how a privacy commissioner in British Columbia or Alberta (which have similar privacy legislation) could find this reasonable, said Nicole Skuggedal, an associate at Lawson Lundell in Vancouver.

“If you had the ability to go in and monitor an employee, what they’re doing outside of the workplace — that I cannot see as being reasonable.”

And while some commentary on the U.S. case suggested it’s OK to be monitored during work as long as there’s privacy after work, that also is different for Canada, she said.

“In Canada, employees don’t check their privacy rights at the door — we have a right to privacy in the workplace as well.”

Canada has a more robust privacy framework, according to David Fraser, a partner at McInnes Cooper in Halifax.

“So making somebody have it on 24-7… unless that person is on call and meant to be available at a moment’s notice, I can’t imagine that a privacy regulator in Canada would find that to be reasonable. And, in fact, it might even creep into an area where it could be a tort under this intrusion upon seclusion tort (in Ontario), in that it’s an invasion that would be highly offensive to a reasonable person, perhaps. And it may also, if it’s a unionized environment, be cause for grievance probably and might offend the collective agreement which would have implied privacy obligations and things like that.”

When it comes to GPS tracking on an actual person, there is greater concern, said Fraser.

“One can more readily say, ‘Oh well, we need to know where our repair trucks are because they’re valuable assets and we want to be able to deploy them appropriately,’” he said. 

“But when your tracking device is in somebody’s pocket, you’re tracking that person wherever they go and so could there be a legitimate reason why you would want to do that? Perhaps. But, in other circumstances, you could see how it would become more intrusive, and it’s all going to be dependent upon reasonableness in the circumstances.”

And while after-hours tracking of a personal device may be offside, that’s not always the case with a company-owned vehicle, said David Young, a principal at David Young Law in Toronto.

 “If that’s understood that it’s only (for work) but the person isn’t supposed to use it for other purposes, well, it could be reasonable to keep it on for 24 hours a day and that would be acceptable.”

In 2013, three cases in B.C. provided considerable clarity when it came to employee tracking. Each involved an elevator company using GPS tracking, with one, KONE, involving cellphones. 

The tracking confirmed start and stop times, checked for time theft and vehicle speeds, and also used the information for billing purposes, said Skuggedal.

“It wasn’t constant monitoring, it would only be after the fact, if there was an incident they’d go back and be able to monitor, so it wasn’t constant.”

In all three cases, the privacy commissioner for B.C. held that it was reasonable for the employer to collect that information. But it had to be employee personal information, meaning “information that’s used for purposes of establishing, managing or terminating the employee relationship,” she said, adding it was only collected during work hours.

“The reason that’s important is because you do not need employee consent to collect, use or disclose employee personal information. That said, it still needs to be reasonable and the employees need to be notified.”

B.C.’s privacy commissioner said it’s about balancing the needs of the employer to have this information, for legitimate business interests, with the employee’s privacy rights, said Skuggedal. And there are five factors to look at for reasonableness.

For one, the sensitivity and amount of information.

“In this case, they were only recording during working hours,” she said. 

“The cellphone… could be turned off during lunch so it’s not capturing any information outside of working hours. In terms of the type of information, it’s not highly sensitive here: where were you, were you working, were you at the right job site, did you speed using the company car?”

Effectiveness is another factor, so while the company could supervise employees another way, this was a very effective way given the mobile nature of the workforce, said Skuggedal.

Also a factor is “manner of collection and use,” she said, meaning how the information is collected so all employees know about it upfront, it’s not covert and a limited number of people have access to the information, with no continuous monitoring.

The availability of less privacy-intrusive means is another consideration, though that doesn’t mean it needs to be the least privacy-intrusive, said Skuggedal.

“Offence to an employee’s dignity” is the final factor, which goes back to sensitivity and the amount of information, she said.

“If we applied those five factors to the situation in California, as I understand it, someone’s being asked to be monitored 24-7, I can’t fathom how a privacy commissioner in B.C. or Alberta would find that to be reasonable.”

And even in Ontario, with that kind of continual monitoring, the employee may quit and have a claim of constructive dismissal, said Skuggedal.

“You may, in that case, have tort of intrusion upon seclusion. So in that case, what appear to be more egregious acts you would fit into those other categories.”

In the B.C. cases, notice had to be given to employees, so it wasn’t surreptitious tracking, said Young, and it was considered a condition of their employment.

“Even though employers like to use that information for literally monitoring what the employee’s doing, whether they’re going to have a coffee or not, the reasons that are given are usually more general workplace-oriented, which is monitoring the vehicle, watching what the vehicle is doing, safety, security, scheduling — stuff like that. All of those have been accepted as reasonable and acceptable under privacy law, broadly speaking.”

One thing employers should be aware of is the privacy legislation requires employees to be properly notified, said Skuggedal.

“Not just ‘We’re going to do GPS monitoring’ but much more detailed: what are we going to use it for, why are we collecting it. So you need to ensure you have proper detail in your privacy policy or your GPS monitoring policy.”

One of the elevator companies, for example, didn’t provide such detail and the privacy commissioner said it had to stop using the technology until employees were properly notified.

“For employee personal information in B.C. and Alberta, you don’t need employee consent, so you wouldn’t need every employee to sign off and say, ‘I consent to you installing GPS on my company vehicle and using it to monitor me during the workday,’ but it would need to be reasonable based on those five factors,” she said.

“If it was collecting information that wasn’t employee personal information, you would need consent.”

Consent in the workplace is actually a bit of a fiction, said Fraser, and it’s not necessarily freely given. 

“So you’re telling somebody, ‘OK, we’re now going to roll out this GPS system to more efficiently dispatch you as cycle couriers, here’s the purpose, can I have your consent?’ What happens if the guy says no? 

“And so, essentially, what I think the commissioners have come up with is if it’s a reasonable workplace policy and it’s employed not arbitrarily in the workplace and deployed arbitrarily in the workplace, then it’s almost deemed consent. But if it’s unreasonable, then you’re not getting proper consent.”

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