While many employers are including wearable devices in their wellness programs to encourage employees to track their health outcomes, one technology giant was granted two patents at the end of January for wearable tracking systems that monitor employee performance.
The devices aren’t yet in use by the technology giant, but if they’re implemented, warehouse employees would wear wristbands that communicate with transducers near inventory bins through ultrasonic sound pulses, while a separate unit would monitor how they perform their assigned tasks.
“From an employer perspective, I think the value proposition is pretty obvious,” says Jeff Moir, national human capital leader at Deloitte Canada. He notes wearable monitoring devices can help management gather performance data to improve efficiency and safety.
Indeed, Deloitte Canada has successfully used wearables within its own workforce. Before renovating its offices across the country, the company piloted a new workspace in Saint John, N.B. Employees were fitted with tracking devices on a lanyard to help determine whether the new spaces actually improved collaboration, which was the goal. Sensors on the device noted who each employee spoke to, where in the office they went and even the emotion in their voice, though they didn’t track the specific words.
“The response that we got from employees was unanimously everyone was excited to be part of the pilot,” says Moir, adding that employees could choose to opt out.
Such tracking can be helpful from an inventory management perspective, but “from a morale standpoint, it might have a [negative] effect,” says Jenny Simpson, a senior consultant at Bromelin HR Consulting in Toronto. “People don’t want micromanaging. People want to be empowered.”
Legally, employers can set targets for workers’ production levels, and can discipline or terminate employees who don’t meet those targets, says Melanie McNaught, partner at Filion Wakely Thorup Angeletti LLP in Toronto. But “the fact that [a company is] using a privacy-invasive technology to do that might make it more difficult. For instance, a labour arbitrator might find the evidence from these wristbands is not admissible, for instance, and then it would be harder to prove the person wasn’t working as efficiently.”
In Canada, the Personal Information Protection and Electronic Documents Act only applies to federally regulated employers, and only British Columbia, Alberta and Quebec have passed similar legislation that applies to provincially regulated private-sector employers. If an employer in those provinces wanted to implement wearable trackers, it would need to demonstrate a reasonable purpose, says McNaught. Courts “frequently draw a distinction between monitoring for a legitimate business purpose like preventing theft versus monitoring for employee performance or conduct,” she adds.
Explaining the reasons for any new policy is key to employee buy-in, says Simpson. And Moir notes that in addition to being upfront with how companies are going to use data from the trackers, management needs to build trust with their workers by demonstrating it keeps promises and prioritizes employee interests.
Unions would likely grieve the implementation of these wearables on privacy grounds, but non-unionized employees in provinces without privacy legislation would face “an uphill battle,” says McNaught. They could sue for constructive dismissal, which implies the employer changed the terms of employment without their consent, thereby terminating the employment relationship.
Nevertheless, “if a [non-union] client of mine wanted to do this . . . I would advise against it because it’s the sort of thing that invites employees to bring in a union,” adds McNaught. “They feel that they’re being taken advantage of, that the employer is implementing rules that aren’t fair.”