Arbitrator Determines Cell Tracking App Contrary to Employee Privacy Interests

July 28, 2021

In a decision released May 15, 2021, Arbitrator Derek Rogers upheld grievances concerning an employer’s implementation of a phone application entitled “Exak Time.”  Grievances were filed by both IUOE Local 793 and LIUNA 183. Both unions challenged the employer’s implementation of the app, which required clocking in and clocking out via mobile phone.

The ExakTime application was to be downloaded to the employee’s mobile phone and requires the employee to take a “selfie.”  The selfie would be uploaded to record both the time and the employee’s precise location. The employer would also have use of a feature known as a “Geo Fence,” in which it could track each employee’s location within a work site.

Arbitrator Rogers endorsed the proposition that where an employer wishes to intrude on the privacy interests of its employees, it must have good reason to do so, and must establish the need for the intrusion with viable evidence. Ultimately, Arbitrator Rogers determined that the mandated use of the app was a material privacy intrusion for which the employer did not have an evidentiary basis to justify its use. Concerning to Arbitrator Rogers was the exposure of employee data to other entities such as Google Analytics and the authorization of other undisclosed uses of employee data.

Arbitrator Rogers distinguished this case from other time card cases on the basis that the app required employees to contribute their data without informed consent and without compensation to meet the employer’s attendance requirements. Although the employer argued that the application with its selfie feature was introduced to prevent “buddy punching,” the employer did not introduce any evidence of this having actually occurred in the workplace. In balancing the interests, Arbitrator Rogers characterized the employer’s interests as “nothing of consequence,” which he weighed against the significant intrusion on employees’ privacy.

Although there is a body of jurisprudence to support the introduction of time keeping technology, Arbitrator Rogers distinguished those decisions and took issue with specific aspects of the ExakTime software, namely:

1. The requirement that employees take and submit “selfies”;
2. The fact that the employee’s geo-locational data could be engaged outside the workplace; and
3. Both the visual images and geo-locational data are provided to a foreign-based organization with a documented right to hold, use and distribute the data.

Ultimately, the ExakTime app was found to violate the privacy interests of bargaining unit employees, contrary to the collective agreement and without adequate support in the agreement’s management rights clause.  The employer was directed to cease the use of ExakTime application.

As timekeeping applications continue to become more technologically sophisticated, this case serves as a stark reminder of the limits to the use of that technology without valid rationale, justification or consent. Employees cannot be mined for their data and do not give up their rights to their data by virtue of employment.

International Union of Operating Engineers, Local 793 & Labourers’ International Union of North America, Local 183 v Earth Boring Company Limited, 2021 CanLII 42419 (ON LA), <https://canlii.ca/t/jg0p6>

 

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