Previously printed in the LexisNexis Labour Notes Newsletter.
Many of us use applications (apps) in our daily lives - but what happens when an employer uses an app to manage its workforce?
That was the issue Arbitrator Koml Kandola had to decide in KONE Inc v. International Union of Elevator Constructors, Local 82 (Installation Back Reporting Tool (IBRT) 2.0 Grievance),  B.C.C.A.A.A. No. 4 (Kandola).
KONE Inc. (the "Employer") installs, maintains and modernizes elevators and escalators. Due to the vast number of worksites on which its employees are working at any given time, supervisors are not able to attend at every worksite daily.
Following a series of employee attendance problems which were discovered by chance, the Employer rolled out an improved version of its Installation Back Reporting Tool application, IBRT 2.0, which uses GPS technology on the work devices of employees to "track" their proximity to the worksite during work hours.
IBRT 2.0 was used to verify the time the employees were spending at work and improve the accuracy of invoicing and timekeeping.
The International Union of Elevator Constructors, Local 82 (the "Union") grieved this, alleging it to be an invasion of employee privacy. The Union also brought an interim application, seeking an order that IBRT 2.0's GPS function be disabled pending the outcome of the grievance or, alternatively, be delayed in its implementation.
At the outset of her analysis on the Union's interim application, Arbitrator Kandola noted that the case law requires extraordinary circumstances for the granting of interim relief.
Such relief should not be granted as a matter of course and an applicant such as the Union in this case has to demonstrate that the relief is necessary in order to preserve a meaningful remedy.
Arbitrator Kandola dismissed the interim application. She held:
in the absence of an interim order, an adequate remedy would be available at the hearing on the merits; and the Employer would be unduly disadvantaged or penalized if the grievance were to fail.
Decision on the merits
Turning to the decision on the merits, Arbitrator Kandola began her analysis by reviewing the relevant sections of the B.C. Personal Information Protection Act ("PIPA").
She found that the information the Employer was collecting met the definition of "employee personal information", and the Employer used the employee personal information solely for the purpose of managing the employment relationship with the employees.
Because the information was found to be employee personal information, the relevant sections of PIPA were sections 13 and 16. Those sections hold an employer to a standard of reasonableness.
Reviewing the applicable case law, the arbitrator found the Employer's use of IBRT 2.0 was reasonable and allowable or permissible based on several factors:
The sensitivity of the information collected was on the lower end of the privacy spectrum, and the information was not continuously available or monitored. The information collected through IBRT 2.0 would achieve its purpose of, among other things, verifying employee attendance and ensuring accurate timekeeping and customer invoicing. The Employer limited the amount of information it was collecting to that which is reasonably necessary to achieve its purpose, and provided notice to the Union and its employees prior to implementation. There were no less privacy-intrusive alternatives reasonably available to the Employer to achieve its purpose. The arbitrator considered that the Employer had evidence of at least 38 attendance issues over the past two years and those issues were only discovered by chance. While offence to employee dignity is a relevant factor, the employees in this case were speculating about the extent of the Employer's surveillance and, in any event, the Employer had taken steps to minimize the information it was collecting and the impact on the employees.
Arbitrator Kandola held that the appropriate test is whether the collection and use of IBRT 2.0 information was a reasonable exercise of the Employer's management rights, where reasonableness is to be assessed objectively. In finding in favour of the Employer, the arbitrator made the following observations:
The purpose for which IBRT 2.0 was introduced included bona fide objectives and concerns (i.e. accurate invoicing and timekeeping) and this was supported by evidence. The objective of verifying proper attendance was directly linked to the collection of information through IBRT 2.0, and there was no evidence that the information was used for any other purpose. IBRT 2.0 had been implemented and utilized in a reasonable manner. No less privacy-intrusive reasonable alternative existed. Intrusion into employee privacy was on the lower end of the privacy spectrum. While working under surveillance would be uncomfortable for many employees, a balancing of interests approach was required. The usual KVP factors for the unilateral introduction of an employer policy or rule were satisfied.
An employer can introduce new technology to manage its workforce on the condition it approaches the matter carefully and thoughtfully and addresses the relevant issues and takes certain required steps.
In this case, the Employer demonstrated that it had an interest in verifying employee attendance at the worksite, and the app was a useful tool in addressing the matter. The Employer tailored the US version of the app to its Canadian employees, limiting the information that could be accessed. It provided notice to both the Union and its employees and provided training on the new app.
An employer considering the introduction and use of new technology to address a workplace issue should consider the purpose of the technology and how it would assist in the workplace. The employer should provide notice to its employees and offer the necessary training. In designing its policy, the employer should limit the information sought to what is required in order to achieve its purpose and, when and where possible, seek appropriate legal advice and assistance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.