In April, news spread quickly about an Alberta custodian terminated after refusing to download a tracking app to her phone. Ever since this case made headlines, employees and employers nationwide are wondering if tracking software is something an organization can force on its employees.
The complete story is available here, but to sum it up; after six weeks on the job Michelle Dionne was asked to download the Tattleware tracking app “Blip” to her personal phone so managers could confirm their employees were working in the right location at the right time. Dionne was concerned about privacy; her employer didn’t look into it, and therefore wasn’t able to answer Dionne’s questions about how the data would be used. Without any solid information Dionne wasn’t comfortable downloading it and that was all management needed to issue her termination papers.
WHAT IS TATTLEWARE?
This software that can be downloaded on our phones or personal computers allows organizations to track their employees. This includes monitoring your mouse movements, how you interact with clients, or even your webs searches. Some versions of tattleware even allow employers to watch videos of their employees’ screens. Mobile devices (such as your personal smartphone) can also include GPS to monitor your location.
IS TATTLEWARE LEGAL?
Yes, it’s a delicate subject though with plenty of exceptions. In Alberta, where this particular tattleware case took place, they have their own privacy regulations regarding the collection and use of personal information. Here in Ontario, and most of Canada we are governed by The Personal Information Protection and Electronic Documents Act (PIPEDA).
PIPEDA only applies to private-sector organizations that collect personal information (in the context of a commercial activity). The commercial activity could be employment, or a transaction with a business, such as buying shoes online. To help build trust in the digital economy there are 10 principles enforced by PIPEDA that protect us:
2. Identifying purposes
4. Limiting collection
5. Limiting use, disclosure, and retention
9. Individual access
10. Challenging compliance
As long as the organization collecting your information complies with these safeguards, then the tattleware is legal.
CAN AN EMPLOYEE BE TERMINATED FOR NOT USING TRACKING APPS?
Again, the short answer is yes. Employers are within their rights to enforce tracking devices and apps. There are some things that need to be considered though:
– Employers cannot enforce it, if the tracking app was not initially established at the start of employment, or was not added to and agreed upon, on an updated contract.
– The app can only track the employee during work hours.
– Informed consent is required, which means both the employer and employee need to be aware of what data is collected, how and when it’s collected, how it will be used and stored for, and for how long.
COVID-19 changed the way a lot of workplaces function. Many organizations still have a lot to figure out and that’s what needs to be taken into consideration for both the employee and the employer.
WHAT WILL HAPPEN WITH THE DATA COLLECTED?
Every tracking app is different, so it’s up to the employer to find one that their employees are comfortable with… employees do, afterall, need to give their consent. The employer needs to relay the privacy information to their employees. It’s still a difficult battle to convince staff to download the software on their personal phones and computers, which is why employers are getting around it by providing their employees with phones or laptops during this time.
Last fall the federal government launched Canada’s Digital Charter and Implementation Act. Its goal is to increase our protection by giving us more control and transparency when businesses are handling personal information. It won’t be implemented anytime soon; the act is currently in its second reading but it does have the potential to change current privacy laws.
At the end of the day, an employer is within their rights to ensure employees are doing their job. An employer is also able to dismiss an employee for pretty much any reason including refusing to download tattleware (as long as any severance owed is paid out).
WHAT SHOULD YOU DO AS AN EMPLOYEE?
If asked to download tattleware, don’t refuse immediately. Instead question your employer about the software they’ll be using, when it will be used or when data will be collected, and how the data will be used and stored. If you’re not satisfied with the answers, it’s recommended you either contact PIPEDA to address your concerns (a response or results could take time with this method). You can also reach out to a legal team that specializes in workplace concerns such as wrongful dismissal and employees’ rights.