On January 14th, a British Columbia labour arbitrator dismissed an allegation that an employer breached British Columbia PIPA and the terms of a collective agreement by employing location awareness technology to manage employees on its construction job sites.
The employer used phone based technology to “manage and track […] employee attendance, including administering attendance requirements and payroll, and identifying and investigating inaccurate time keeping.” It adduced evidence problems with incidents of inaccurate logging of work and other attendance problems that it had discovered “by happenstance” through supervisors who managed crews across multiple work sites.
The employer installed the technology on work phones for use on job sites. The technology gathered data about whether an employee was within a work zone (along with distance away from the zone) once every three minutes. This data could not be reviewed until 24 hours later except for a “roll call” function that supervisors could use to check on employee location at any given time.
There is a line of British Columbia location tracking jurisprudence favourable to employers marked by a leading case decided by former Commissioner Elizabeth Denham – Schindler Elevator. The Schindler case, though, involved GPS technology installed in mobile workforce vehicles, partly for safety-related purposes – not phone based technology used on a job site to improve productivity. The union also argued that Schindler should no longer be followed because it pre-dated the Supreme Court of Canada’s alcohol testing decision in Irving Pulp & Paper.
The Board disagreed, and affirmed and applied Schindler. It held:
- the information was not sensitive;
- the collection was “reasonably likely” to be effective in satisfying its purposes;
- the manner of collection was reasonable, in particular because the collection of data was minimized to what was necessary (not precise location and not continuous monitoring); and
- the employer was entitled to collect the information even though there were other means of addressing its attendance problems, and is not required to exhaust all available alternatives.
This is a helpful decision for employers. While continuing to signal an aversion to “continuous monitoring” and highlighting the need for data minimization, the decision allows for the use of location awareness technology on a job site, which I believe is a Canadian first. It was also quite clear that this employer was motivated by distrust, which unions have argued aggravates the impact of monitoring. The employer did a good job of adducing evidence to prove it had legitimate concerns, but the Board also endorsed the proposition made in Schindler that there is “nothing remarkable” about an employer checking on compliance with work rules.