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David Muhanlal, a welder and former union rep, found that his personal mobile phone had a number of tracking apps installed, which the company could use to monitor his location and activity.Fred Lum/The Globe and Mail

In his years as a welder, David Muhanlal would start the day by checking in with his supervisor. That changed in 2017, when his employer asked its workers to download an app on their phones and clock in and out through that instead.

Mr. Muhanlal didn’t mind too much at first, until one day he left the job site without punching out. He did an errand at a bank, then remembered that he had to clock out.

The next morning, he says, his supervisor was livid about the mistake. Mr. Muhanlal understood the clock-out time was wrong – but he was disturbed to learn that his supervisor knew his exact whereabouts in the 20 minutes he was off-site, because the mobile app’s GPS locator had followed him every step of the way.

“That’s when I got to realize, this app, they’re tracking you on it,” he said.

Software applications to monitor employees’ movements and productivity were once the domain of large employers such as Amazon, but as the technology becomes cheaper and easier to use, it is being adopted more and more by smaller companies, such as contractors with a few dozen employees.

Companies that use the products say they allow for more accurate measurements of employees’ time, require less administrative overhead and include features to reduce fraudulent activities, such as buddy punching.

But as a series of recent Ontario labour decisions have shown, the technology can also be misused, leaving employees open to safety risks and invasions of their privacy, including concerns about how their biometric and location data are being harvested and used.

The technology can come in many forms, with or without GPS location tracking enabled, and either preloaded on employer-owned mobile devices or available to download on employees’ personal devices. The software, from a variety of developers, has grown in popularity in recent years – especially during the pandemic.

Harry Lane, vice-president of global sales and marketing at California-based Econz Wireless, says his company, which makes a time-tracking app, has seen revenue increase 80 per cent year over year in 2021, which was on top of 65-per-cent growth the year before.

He said the reduction in cost of mobile devices and data plans has allowed more people to access the technology. “That’s what’s driven our business,” he said. “With the adoption of mobile devices by really almost everyone now, you’re able to harvest data out in the field that maybe three, four years ago you couldn’t do that.”

Mr. Lane said his usual pitch to companies includes the creation of more accurate payroll records and the ability to implement other features, such as COVID-19 screening tools.

But as companies adopt the technology, they have received pushback from employees. Three labour disputes have been launched in recent years: One case before the Ontario Labour Relations Board (OLRB) that was decided in late 2019, and two arbitrations that were decided in the summer of 2021. Another case that consolidates two different, but similar, grievances will begin hearings at the OLRB later this month.

Adjudicators have ruled against the use of the timesheet apps in all three cases that have been decided so far.

The cases have centred around two main issues: safety and privacy.

On the issue of health and safety, cellphones have been banned for most workers on construction sites for years. John Evans, general counsel for Local 183 of the Labourers’ International Union of North America (LIUNA), which represents more than 58,000 construction workers in the Greater Toronto Area, said cellphones can be a potentially life-threatening distraction to those working in dangerous conditions.

Mr. Evans said his union welcomed a 2010 proposal from the Greater Toronto Sewer And Watermain Contractors Association (GTSWCA) to ban all cellphone use on work sites as part of contract negotiations – and was puzzled when, in recent years, employers covered by the agreement began to introduce these time-keeping apps.

“What are we doing, giving every construction worker in Ontario another eight reasons to be distracted in the midst of this inherently dangerous work?” he said.

Gavin Tighe, a lawyer for GTSWCA, declined to get into specifics about the apps’ use because of the coming labour hearing, but said there is a strong business case for using the software.

“There may be times when revolutionary technology will conflict with traditional notions of work,” Mr. Tighe said in an e-mail. “However, the GTSWCA and its members remain committed to innovation, fairness, efficiency and seeking to ensure that progress is implemented in a manner that respects employee’s rights while at the same time embracing the multitude of benefits that technology promises.”

The other main issue is privacy. Although the applications differ in how they work – and all three labour cases so far decided involved different programs – they generally include features to record the cellphone’s GPS co-ordinates to a high degree of precision. They upload that information to cloud-based servers run by companies including Microsoft or Amazon. (Location tracking can be turned off if the phone is off, or at the employers’ discretion, but in the cases heard so far it was not always clear when the feature was off.)

Workers are also required to take a picture of themselves when they log in or out for the day, in order to prove they are on site and in good health.

Andrew Black, another lawyer for LIUNA Local 183, said he had concerns about how the data was collected and used, and suggested it could be aggregated and possibly sold to third parties. Because the apps were generally made by companies outside Canada, it was not always clear what privacy laws they operated under, and whether employees’ biometric data – the thousands of photos of their faces they might upload in a year – was properly protected.

And although employees had to consent to the app’s privacy policies when they downloaded them, he said it was not meaningful because the apps were required as a condition of employment.

“It’s quite another thing when your employer says: you’re required to do this or else you don’t have a job,” Mr. Black said. “Whether that’s an implicit threat or an explicit threat. … It’s not consent in any real sense of the term.”

The Office of the Information and Privacy Commissioner of Ontario said there is no privacy statute that protects employees of provincially regulated businesses in the province.

Despite the decisions so far, adoption of time-sheet applications has continued among construction companies. Gene Woodbridge, the chief executive officer of Earth Boring Ltd., which was the subject of one of the arbitration cases, said in a statement that he believes the technology is beneficial for both the company and its workers. He said Earth Boring uses the time-sheet app in a manner consistent with the arbitrator’s decision, but declined to specify what changes had been made since the ruling.

Mr. Muhanlal, who was a witness in Earth Boring’s arbitration case, said he quit working for the company earlier this year because of its continued use of time-sheet apps.

“To be honest, I didn’t feel comfortable working in that situation,” he said, later adding: “I felt as though I was being watched, every single move that I made.”

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