But last October, after being at work for about six weeks, her boss at the cleaning company sent a company-wide message – asking employees to download an app on their home phones that would check their location and make sure they were working their scheduled hours. Dionne found the request offensive and refused.
“I was in school to work so I could support my son,” she told Go Public. “We are not thieves. We don’t need an ankle monitor. “
Less than two months later, the single mother was fired – her refusal to download the app was mentioned in her dismissal letter.
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Other Canadians have been asked to download software that helps employers remotely monitor their productivity – such as phone apps that record an employee’s location via GPS and software that monitors their employee’s mouse activity. computer. Others have tracking devices in their vehicles.
This prompted some labor lawyers consulted by Go Public to sound the alarm bells.
“Employee tracking… is the start of a uplifting story that could lead us to a place we don’t really want to go,” said Toronto employment lawyer Soma Ray-Ellis.
“We need to take a break… before we follow a path to be followed all day, every day, wherever we are.
“Everyone installs this application”
Dionne says she is thrilled to have gotten the job last fall – responsible for things like sanitizing doorknobs, light switches and bathrooms to prevent the possible spread of the coronavirus.
“With the pandemic going on, I felt like an important part of the team,” she said. “I was complimented [by her employer and school authorities] for doing such a good job. ”
When her boss told her to download the app, Dionne expressed concern about her privacy. The app would go on her home phone and, she says, her boss didn’t make it clear how it worked or what would happen to the data collected.
“It was just a general statement -” Everyone installs this app on their phone. This is how we do things from now on, ”Dionne said.
The application, called Spot, generates a geofence – a virtual boundary, created by the employer using GPS – that detects when an employee enters or leaves. The app records a signal from the worker’s cell phone, when the “locations” setting is enabled, so the boss can tell if an employee is on site and how many hours that person is working. It only records the location of an employee when entering and exiting the geofence and does not track their specific movements.
WATCH | The custodian who refused to download the tracking app was subsequently fired:
It is not clear where this data is stored, or if other employee information can be included.
Go Public has contacted the app’s creator, UK-based BrightHR. Spokeswoman Natalie Shallow said that while the app collects data, that data “belongs to the client organization” – that is, the company that uses the app – and therefore is subject to the company’s own policies.
Data protection “complies with all applicable laws, including the Personal Information Protection Act of Alberta,” Shallow said.
Dionne was worried about where the information might end up. She knew apps like Instagram, Facebook and others had been breached. She says no one told her how secure the information would be.
Location, location, location
Companies that build similar apps – such as ActivTrak, Teramind, and Hubstaff – told CBC News they saw an increase in customer inquiries, but did not provide Canadian figures.
BrightHR claims to have over 60,000 small business customers worldwide and that Blip usage “has grown exponentially over the past two years.”
The increase raises questions about what is and is not personal information.
According to Alberta Privacy Protection Act, the location of a worker is considered personal information when it is collected to manage that employee.
In British Columbia – which has similar privacy laws – a case from 2013 before the Office of the Information and Privacy Commissioner found how a business used employee personal information when it relied on GPS cell phones to, in part, “confirm the presence of employees and otherwise manage relations with its employees ”.
When is consent really consent?
Ray-Ellis says just because an employee downloads an app at the boss’s request doesn’t mean they’re giving informed consent. Employers should know how the collected data will be stored, shared or used – and this information should be clearly explained during appropriate training on the new software.
“The employer should explain what the app is for,” said Ray-Ellis. “Who has access to it? Is the data stored securely? Is the data tracked in real time? And what is the real goal? “
Toronto employment attorney Lior Samfiru told Go Public that employers can force employees to download an app on their cellphones – but only if they tell them it’s a requirement when they register. hiring.
Otherwise, refusing to download it “would not be considered a fault”.
However, Samfiru added, an employer can let an employee leave “for just about any reason” as long as any severance pay due is paid.
One of the biggest concerns with tattoo software, says Ray-Ellis, is that employers often don’t know enough about how the data will be used – making informed consent difficult.
“Employers… should understand where this data is going,” she said. “Is there a third party who has access to it?” Does he migrate to a foreign jurisdiction? “
Dionne’s former boss admits she wasn’t sure where Blip-generated data would be stored when she introduced the app to her workforce last fall.
“I never asked this question and never thought to ask it,” said Hanan Yehia, founder and owner of HY Cleaning Services, which operates cleaning services for eight locations in northern Alberta. .
She says after Dionne raised her concerns, she returned to BrightHR for more information and was advised that employee movements within the geofence are not specifically monitored. Yehia says she shared this information with Dionne.
The app was a solution to a problem, says Yehia – she was looking for a way to simplify payroll by easily tracking hours and making sure employees claiming to be working were actually at work.
“We had problems in some places where they said they were there, that they were working, but that was not the case,” she said, adding that the presence was not a problem with Dionne. She also says Dionne’s refusal to download the app wasn’t the only reason she was fired.
Ray-Ellis argues that the use of such apps should be a last resort to avoid any violation of privacy laws.
“If there is another mechanism, I would definitely advise my employer clients to think about other ways to track their employees first,” she said.
Dionne said she had worked in other places that used a time card to track hours and was happy to do so.
“You leave at the end of the day, the card stays there. But it was my [personal] phone, ”she said.
All provinces and territories have laws that regulate the collection, use and disclosure of personal information in the public sector, but for the private sector, only British Columbia, Alberta and Quebec have similar laws.
HY Cleaning Services must comply with the Personal Information Protection Act (PIPA) of Alberta. It states that companies may collect personal information about employees for “reasonable purposes relating to the recruitment, management or termination of staff” provided that “reasonable notice” is provided and employees are informed of the reasons. for which this information will be collected.
It also states that an organization “shall give the person a reasonable opportunity to withhold consent”.
“I didn’t think it was an option,” Dionne said. “I don’t think that’s the case because it led to my dismissal. “
Concerns about what companies can do with the personal data they collect from employees partly prompted the government to launch Canada’s Digital Charter and Implementing Law last fall.
Once implemented – not expected anytime soon, it is at second reading – it will “modernize the framework for protecting personal information in the private sector”.
Even so, Ray-Ellis doesn’t think the charter goes far enough with certain employee protections, such as “what they’re protected from and… when can they withhold their consent.”
“We give up a lot of our privacy rights without even realizing what we are giving up,” she said. “Before it’s too late and we’re going down a slippery slope, it’s time we looked at this. “
Dionne says it was a blow to be fired, but the experience has a silver lining.
Now she wants to learn how to help other employees who feel they haven’t been treated well either.
“I’m going back to school,” Dionne said. “I am thinking of getting into the law. “