In today’s technology-driven world, the use of surveillance in the workplace is becoming a more common theme. Whether it be through simply installing security cameras throughout the office to more in-depth monitoring systems like dashboard cameras or GPS systems in cabs and transport trucks, there is a delicate line between business interests and the privacy rights of employees. While electronic monitoring tools can help to ensure compliance with safety regulations and protect an organization’s assets, excessive or undisclosed surveillance can raise serious legal and ethical concerns under both privacy and employment laws.
Personal Information Protection and Electronic Documents Act (PIPEDA)
PIPEDA governs the collection, use and disclosure of personal information in the course of commercial activity and across borders in Canada. PIPEDA is a federal legislation, but it also applies to provinces that do not have their own substantially similar privacy legislation. This includes Ontario.
PIPEDA defines “personal information” as any factual or subjective information about an identifiable individual, including, but not limited to, information like name, age, income, and opinions, as well as sensitive data such as employee files, medical records, and fingerprints. The definition is broad and includes information recorded or not, in any form, that can be linked to a specific person.
PIPEDA requires businesses to identify and explain the purposes of collecting personal information before or at the time of collection, and then obtain the individual’s consent to collect, use, or disclose it. Organizations are required to limit collection of personal information to what is necessary. Employers must use the “least privacy-intrusive way” to address a business problem.
Why and How Employees are Monitored
While the need to electronically monitor employees may vary depending on the nature of a business, the most common reasons are for security purposes, safeguarding confidential information, health and safety, and to ensure productivity and evaluate performance.
In an office setting, these measures are more standard, including surveillance cameras in public areas and through data metrics and email and internet monitoring.
In a non-office setting, where employees may work from a company car or drive a taxi or transport truck, more recently we are seeing employers using GPS tracking devices or even inward and outward facing dashboard cameras. It’s important to note that the use of a company asset does not eliminate an employee’s expectation or rights to privacy.
Use of GPS Tracking and Dash Cams
Given electronic monitoring systems in an office setting seem to be more widely discussed, we thought it would be insightful to do a deeper dive into the use of GPS tracking and dash cams for work-related purposes.
If an organization is using GPS tracking or dash cams, employees must be informed. This should be done through a workplace policy addressing how and why employees are monitored, along with how the information is being collected, used, and stored. If employees can be disciplined for results of monitoring, this should also be included. Any access to tracking or camera footage should always be stored in a safe and secure manner. Employees should be asked to sign an acknowledgement and receipt of the policy.
Given employers must have a legitimate business purpose for monitoring its employees, any off-duty or afterhours monitoring is considered an unreasonable invasion of privacy. Video recordings which include audio recordings have also been largely found to be a breach of privacy.
Notable Findings
The Office of the Privacy Commissioner of Canada (the “OPC”) released two reports (one from 2021 and one from 2022) regarding the use of dash-mounted camera systems. In both reports, the OPC accepted that the use of dash cameras addressed legitimate needs, including road safety, security, regulatory compliance and employee performance. The dash cameras were also effective in enhancing road safety and driver compliance. However, the OPC made a similar finding in both reports that the use of audio recording in certain circumstances was entirely unnecessary. This was especially the case, given truck drivers often sleep or take rest breaks in their trucks. In these instances, there is a reasonable expectation of privacy.
The OPC recommended in both reports that any audio recording feature be disabled, and for the 2022 report, that the audio and video recording had a disable function when the truck is not being used for business purposes.
Tips and Takeaways for GPS and Dash Cams
- Employers should ensure limited monitoring for legitimate business reasons only.
- Personal information should be stored securely and only disclosed on a “need to know” basis.
- Be aware of on-duty vs. off-duty monitoring. Any electronic monitoring should be limited to work hours and work-related purposes. An employer’s justification for monitoring, such as safety and efficiency, does not extend to an employee’s personal, off-hours life.
- Avoid the use of audio recordings. Continuous or always-on audio recording is generally not allowed.
If you are an employer implementing electronic monitoring and want to discuss the proper policies or you have concerns about electronic monitoring and your privacy rights, we are here to help. Get in touch for more information.
