Employers need to educate themselves on work tracking apps

By Tony Poland, LegalMatters Staff • Tracking apps on the job are not necessarily intrusions to be feared by workers as long as employers take the time to understand their capabilities and ensure they don’t violate privacy rights and carefully explain it to them, says Toronto employment lawyer Jeffrey M. Andrew.

Citing an Alberta case where a woman was fired after refusing to download a tracking app to her phone, Andrew, a partner with Cavalluzzo LLP, says employers “have the right to regulate the workplace” as long as they don’t run afoul of labour laws.

“People may think it sounds a bit intrusive but if all a tracking app does is ensure a worker is where they are supposed to be when they should be and doesn’t collect any other data, I can see the point for that, he says. “As long as the use is limited to a legitimate work purpose, people should not be afraid of them. The problem in this particular case was the employer didn’t really know how it worked and did not explain the purpose and limitations of the app to their workers. They would not be able to say their employees had the chance to give informed consent to this tracking.”

Worker objected to tracker app

CBC reports a custodian was on the job for less than two months when her company announced that employees would have to download an app on their personal phones that could check their location to ensure they were on the job during their scheduled hours. She objected.

“We’re not thieves. We don’t need an ankle monitor,” she tells CBC.

The woman says she was concerned about what information was being collected and where it would end up. Looking for information she went to her employer, who was unable to provide more details, according to CBC.

“The problem was the employer got this app, they didn’t know how it worked and didn’t tell people what its purpose was,” says Andrew, who is not involved in the case and comments generally. “That is just a fairly basic mistake from a privacy law perspective.”

According to CBC, the app generates a geofence, or a virtual boundary, created by the employer using GPS. It detects when an employee enters or leaves a workplace but doesn’t track specific movements.

A way to ensure a worker is on the job

“To me, it’s not a perfect substitute for a supervisor because there could be concerns about the quality of the work but it’s a way to verify an employee is on the job,” says Andrew. “It is essentially the same principle as punching a time clock.”

He says he expects the development of tracking apps will continue to grow as their use becomes more accepted and will be another issue employees will have to face.

“It’s difficult sometimes to come to grips with the fact that it’s a new world,” Andrew says. “We have to realize that it’s not just your phone. It’s your connection to the world. It does so much more than just operate as a communication device. Whether you think so or not, it is actually a tracking device.

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“Some people might decide that even if the employer can show it’s a reasonable application, they don’t like it and they don’t want it on their phone,” he adds. “They don’t have to agree to download the app but maybe they don’t get to work there anymore either. Of course, unionized workers can challenge this through their union.

Andrew says apart from violations of human rights and employment standards laws, a non-union worker can be terminated at any time, as long as the employer pays any severance due under the law. He also says employers are permitted to reasonably change the terms of employment to suit operational needs.

Substantive change could be considered constructive dismissal

“The significant contractual agreements are the ones that made up at the outset of employment and an employer can’t just come back and change them later without sufficient notice,” Andrew explains. “If it’s a substantial change to something such as your hours, your pay or benefits, it can be considered constructive dismissal.”

He says the bottom line for employers is that if they are introducing technology such as tracking apps into the workplace, they should know how they work.

“They must be able to respond to workers’ questions. they need to know what it does. And they have to give employees all pertinent information so they can meaningfully accept it. If there’s any chance the application does more than what they say and could track employees’ movements beyond the workplace, that would be cause for concern,” says Andrew. “There are provinces that have privacy legislation and in those that do not, common law still applies and privacy requirements there, albeit limited, are evolving.

“Workers need to ask questions and if the employer doesn’t have answers, they should provide details on where to find them.”

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