Case Report – Arbitrator issues strong award in allowing employer to implement biometric timekeeping

8 Jan

On December 15th, Arbitrator Lorne Slotnick dismissed a grievance that challenged the implementation of a biometric timekeeping system.

The employer purchased a Kronos system and required employees to enrol. The system works by matching a person’s partial fingerprint against a 348 byte numeric representation or “template” of the fingerprint that is created in the enrolment process. The employer brought evidence that fingerprint templates were kept secure and could not readily be used to recreate a fingerprint image that could be used by law enforcement. The employer also admitted that it did not have a serious “buddy punching” problem but wanted the superior biometric system anyway.

Arbitrator Slotnick applied a balancing test and dismissed the grievance because the employer had proven a concrete benefit to the system and its invasiveness was minimal. He used the following strong langauge in doing so:

How great is the infringement on privacy of employees? In my view, the evidence reveals it to be extremely small, almost negligible. In fact, labelling this an “invasion” of privacy strikes me as linguistic excess. When employees enrol in the system, a scan of less than half of a fingertip is taken. Enrolment, the evidence indicates, takes less than a minute. There is no physical intrusion, no furnishing of any bodily substance, no exposure of any part of the body that is considered private. Employees do not provide a fingerprint, nor can the scan that is provided be reconstructed into a fingerprint.

Natrel asked me to contrast these facts with the kinds of personal information that is routinely gathered by this employer and others, such as employees’ home phone numbers, signatures, home addresses and social insurance numbers. The union argued this was an irrelevant consideration. I disagree. The type of information given as a matter of course by employees to their employers indicates clearly that a certain level of infringement of privacy is understood and accepted by all workplace parties – provided there is some legal or business justification and provided the information is protected and used only for the purpose for which it is given. No evidence is necessary for me to note that in addition to the information mentioned above, many employers request other sorts of information such as photographs of employees for use on identification cards or bank account numbers for direct deposit of pay. These are accepted intrusions, they are part of the modern workplace, and in my view are far more invasive and far more open to the possibility of misuse or abuse than a scan of part of a fingertip that is converted to a jumble of numbers and deleted right away.

Unionized employers have been cautious about implementing biometric timekeeping systems since Arbitrator Tims upheld two similar grievances in Dominion Colour and IKO Industries, the latter being upheld on judicial review. Though no one arbitrator is bound by another, the facts underlying most challenges to these systems are similar. This decision and two similarly permissive decisions of the Alberta OPIC from last year (see here) are therefore persuasive and tip the balance of authority in employers’ favour. In fact, Abitrator Slotnick noted that Dominion Colour and IKO Industries were not distinguishable on their facts, but that he preferred a different balancing of interests.

Agropur (Natrel) v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees (Teamsters Local Union No. 647), 2008 CanLII 66624 (ON L.A.).

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