The Canadian Bar Association
Employment & Labour, Information Technology

Employee data tracking opens up a range of legal issues

While there may be considerable benefits from using personal data trackers on employees — including increased productivity and workplace satisfaction — employers should proceed with caution, writes Fredericton litigator Matthew Pearn in Lawyers Weekly.

Pearn writes that Canadian employers are taking inspiration from foreign companies that use personal data trackers and data analysis to improve employee performance.

“However, employers looking to gain the benefit from such programs should prepare for workers raising challenges related to this new practice,” he says.

Pearn, a lawyer with Foster & Company in Fredericton, N.B., writes that Deloitte’s St. John's, Nfld. office was redesigned into an “open concept” setting and employees were asked to wear ID badges with embedded microphones and accelerometers to see if the investment increased employee productivity.

“The badges tracked how often employees were engaged in conversations or moved around the office,” he writes in Lawyers Weekly. “Deloitte received as much as four gigabytes of data a day from each employee’s movements and activity inside of the office.”

Deloitte’s project was optional and guaranteed anonymity to the participants. There was also a contract that employee data remained the worker’s personal property. The data was collected to see how often employees engaged co-workers in conversation, their body language and how frequently they got up from their desks.

Employees who participated in the program received daily updates on their behaviour, which advised workers on whether they were speaking enough at meetings or demonstrating leadership.

“Not unlike digital fitness trackers aimed at motivating better health, these reports apparently motivated Deloitte employees to change their behaviour and then improve their tracked performance,” Pearn writes in the legal trade publication. “The Deloitte program ultimately indicated that employees preferred the new office layout so much that they were less likely to get up from their desks to take breaks.”

For now, the article says, it appears the goal behind many of these programs is to determine which employees are the happiest and most productive and at the same time use the information to develop best practices and coach under-performing workers to help them improve.

“While no Canadian employer has yet advised that it is using these data tracking programs to identify top-tier workers for advancement, this seems a likely extension of this kind of program,” writes Pearn. “Despite having similar job performance and success, it is possible that employees who do not demonstrate tracked behaviours may be passed over for advancement under this new system. Employers must be prepared to justify these kinds of decisions.”

He notes there is risk in creating any digital record. Data collected from devices may become evidence in future employee claims for wrongful dismissal, for workplace prejudice under human rights legislation, or for incidental breaches of their privacy.

Before using data to track employee productivity, Pearn writes employers would be wise to develop HR policies in anticipation of challenges raised by workers, as well as to make workers aware of how data will be used.

 

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