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Aird & Berlis LLP

Employee Surveillance

By Michael Horvat

The constant development of more sophisticated and cheaper technology effectively permits companies to have constant connectivity to their equipment introduction allowing management to monitor use and allocation of company assets in virtual real-time. The installation of GPS tracking and other telematic devices permit regular communication with equipment not only providing location, but tracking movement, gas usage, speed, distance and route travelled.

The information that is obtained from the introduction and use of this technology is often invaluable to fleet management services, for both asset allocation and planned maintenance. There are also very important bottom line financial benefits in the utilization and application of such tracking data. Simply put, it enables companies that manage large truck fleets, particularly those which constantly move and/or work at remote sites, to maximize the time the equipment is in the field and minimize the cost of operation. By imposing optimal route and driving techniques, fuel costs are managed, wear and tear is limited and efficient maintenance programs can be followed. Ultimately, downtime is reduced and productivity can be increased. However, what is not lost on the employees utilizing this equipment is that the information obtained by the company through its telematic devices also provides information on the employees who directly use that equipment.  The same data that bolsters productivity also discloses how fast the employee has been driving, deviations from the optimal route and other “unexpected” conduct. It would not be surprising to Human Resources that employees balk at having “big brother” monitoring their movement notwithstanding that they are using company property. Consequently, companies can face both employee morale issues when implementing telematics tracking devices as well as legal privacy and policy questions, particularly as it relates to unionized environments when changes to employer policy and practice are introduced.

Any company that intends to either implement and utilize telematics or GPS systems must understand that, regardless of the business and economic circumstances that led to introducing such technology to their company fleet, it will only be a matter of time before the GPS data discloses or confirms improper conduct on the part of their employees that could lead to discipline or even termination.

For example, has the company considered what their response will be when it reviews telematic data to determine productivity and fuel costs but come to the conclusion that a particular driver appears to regularly engage in non-permitted use of company equipment. Maybe the driver is utilizing the company vehicle for unauthorized personal use; or there appears to be long and regular periods of unexplained downtime; or fuel expenses claimed simply that do not match equipment usage. Will the company want or be able to rely upon telematics and GPS information to support decisions relating to discipline and even termination?

The labour relations answer, generally, is yes on both counts. When faced with evidence of misconduct (potentially even theft) it is going to be very difficult and bad precedent for such behavior to be ignored or tacitly condoned. Both the Ontario Labour Relations Board and labour arbitrators have accepted and allowed employers to rely on relevant and accurate GPS and telematics data as evidence in arbitration and termination proceedings related to an employee’s breach of policy and/or misuse of company assets.

Unions have generally been unsuccessful in seeking to prohibit the introduction of such technology onto company equipment or otherwise limit the ability of an employer to rely on such evidence when it is used to support decisions relating to discipline. Provided there is no provision in the collective agreement precluding the introduction of such technology or limiting the company use of data, the employer has the management right to manage the use of its assets and the performance of employees. A company simply doesn’t have to have a supervisor ride along with every driver.

Similarly, an employee’s “right to privacy” is limited in the workplace, particularly where the behavior under scrutiny is related to workplace performance and utilization of company assets. Provided that there is a causal link between the information obtained and the employee’s actions either because it occurred on company time and/or related to the use of company assets, it is unlikely that the employee’s “privacy” will outweigh the company’s legitimate business interests in the circumstances. There is likely to be no distinction made between information that could have been obtained directly from a supervisor witnessing an employee arriving late to workplace or telematics data which provides the same information.

Technology has and will continue to augment supervision of employees in the modern workplace. However, any company that introduces new technology must understand that it can come with a human resources price. While the company may be within its legal and collectively bargained rights to utilize and rely on such information for surveillance, discipline and even termination, employee morale will undoubtedly suffer in the short run in knowing that the company can “see them” anytime. More importantly, employers must be realistic and not make promises not to use such data for human resources purposes as such an open ended promise will very likely be difficult to honour. Companies should understand the impact on employees when weighing the benefits of this new and growing technology.

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