Unilateral GPS tracking via cell phone app violates Collective Agreement

In Brick and Allied Craft Union of Canada & Brick and Allied Craft Union of Canada, Local 31 v Terrazzo, the Ontario Labour Relations Board found that unilaterally implementing a digital timesheet tracking system on employee’s personal phones was in violation of two provisions of the collective agreement and also an unreasonable exercise of management rights. Tsheets is a digital timesheet app downloaded onto employee smart phones to allow them to electronically “clock in” and out of their shifts. The employer unilaterally implemented a digital timesheet app called “Tsheets” in November 2018. In response the Union brought a grievance application, arguing that this change violated the Collective Agreement in a number of ways.

The operation of the app, and its use by the employer, was summarized by the Board:

3. Tsheets is a digital timesheet application that allows employees to electronically record the time they start and end their workday on a cellular phone. An employee “clocks in” at the beginning of his shift and “clocks out” at the end. It requires the use of cellular data from the employee’s personal cellular plan.

4. In order to use Tsheets, the employee must download the Tsheets app on his smart phone. The employer installed Tsheets software on its computer in order to receive the data from the Tsheets app. The Tsheets app sends all the recorded data, through the Tsheets servers, to the employer.

5. Once a job is set up by the employer, Mr. Emiliani assigns a job number and job site in the Tsheets software. When the employee starts work, he is expected to open the app, use the pull-down menu to find the appropriate job number, and “clock in”.

6. The app is also capable of tracking the location of the employee (or more accurately, the location of the employee’s phone) through Global Positioning System (“GPS”) technology. By default, the GPS option on the app is enabled and transmits the location to the employer. If the employee disables the GPS on their phone, Tsheets is not capable of tracking the GPS.

7. To explain this in greater detail, if the GPS option is enabled on the employee’s phone, the phone sends GPS data to Tsheets while the employee is “clocked in”. That data is then sent, in real time, to the employer…

11. Tsheets allows the employer to determine which features it wants to use and which features should be unavailable. For example, the employer had the option of deactivating the GPS function. That is, even if the employee’s GPS function was activated on his phone, the employer could have made the settings for Tsheets to not track the employee’s GPS. It chose not to do so. The settings of Tsheets allowed GPS tracking for any employee who did not manually turn off the GPS tracking on their phone.

The employer had implemented use of the app to eliminate the time necessary to physically travel and collect time sheets in order to manage payroll. The Union objected that this change violated the Collective Agreement in five ways, only two of which the Board found it necessary to decide.

First, the Collective Agreement specifically considered the submission of timesheets, and provided that “A timesheet may be submitted by telephone, email or fax.” This language was exhaustive, and so requiring the use of Tsheets was inconsistent with the Collective Agreement.

Second, the Collective Agreement prohibited the use of personal cell phones during working hours on any project. The use of Tsheets, on the other hand, required the use of a personal cell phone during working hours, and so again was inconsistent with the Collective Agreement.

More importantly, however, the Board found that even if the use of Tsheets were not inconsistent with the Collective Agreement, it was an unreasonable exercise of management rights. First, the unilateral implementation of Tsheets forced employees to own, carry and use their personal cell phones at work. Second, employees were forced to pay for their own data in using Tsheets: the Board noted that:

45…While the employer asserted that employees can utilize Tsheets on public wifi networks (e.g. at a local restaurant), this seems impractical in the circumstances, since the employee is required to “clock out” at the end of their shift. To require an employee to relocate to an area where wifi was publicly available is not a practical response to avoid the use of personal data.

Most importantly, the Board found there to be notable privacy concerns with Tsheets:

46. Third, the storage, use and potential sharing of data by Tsheets is also of concern because the employees are not informed by the employer about how such data is protected or used. If looked at in isolation, the collection of “clocked in” and “clocked out” times might not give rise to any concerns. But, when that data is combined with GPS, including locations during breaks and lunches, a more complete picture of employee behavioural characteristics can be seen by Tsheets and any third party provider authorized by Tsheets to view the information.

47. It is unclear to me whether data such as facial recognition (a security option), passwords, Information Protocol (“IP”) addresses, online cookies, or other cell phone usage is tracked and stored by Tsheets. The Privacy Statement of Tsheets states that it collects device information, usage information, location information, content, camera and contacts, information from cookies and local storage. There was no evidence about the collection or use of this information. Thus, I am unable to draw conclusions about the privacy implications. It is obvious that there could be real privacy issues with allowing Tsheets (and possibly the employer) to having access to the data collected and controlled on personal cell phones.

48. It is also concerning that the possibility of such information being shared with third parties is not addressed in the employer’s policy or part of a detailed explanation to the union and the employees. The sharing of personal information with third parties is an issue employees would be reasonably concerned about and I would have expected the employer to thoroughly address it.

In addition, Tsheets automatically sent notifications to employees reminding them to “clock in”, but these notifications were sent to all employees, including those who were not scheduled to work or those who were off due to illness. This might have been reasonable if the employer issued cell phones to its employees, but “it is unreasonable for an employer to unilaterally maintain some control (e.g. sending notifications) over the personal cell phones of the employees” (para 51). Accordingly, the grievance was decided in favour of the union.