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Although new technologies can serve as powerful tools for employers to maximize safety and efficiency in the workplace, employees often take issue with the use of such technologies when they perceive them as invading their privacy. It is more common for disputes of this nature to be adjudicated by way of labour arbitration because unionized employees are typically less reluctant than non-unionized employees to challenge an employer’s use of technology by way of the grievance arbitration process. Fortunately, Canadian arbitrators have recognized that employers’ legitimate business interests can, and often do, outweigh employee’s privacy interests in the workplace.

Teamsters Local Union No. 230 v Innocon Inc. (Toronto Ready Mix Concrete)

In Teamsters Local Union No. 230 v Innocon Inc. (Toronto Ready Mix Concrete) [Innocon], the union filed a grievance alleging that the employer, Innocon Inc. (“Innocon”), violated the collective agreement by disciplining an employee whose alleged misconduct behind the wheel of a cement truck was caught on video. The employer was engaged in the business of ready mix concrete sales and delivery, and employed a fleet of cement trucks to deliver ready mix concrete to its clients. As part of the grievance arbitration, a preliminary issue was raised by the union as to whether Innocon’s installation of Drive Cam systems into its cement trucks violated the collective agreement with its employees by infringing on drivers’ expectations of privacy. These Drive Cam systems consist of cameras facing the road and the driver that record continuously, but that only save videos when triggered by a significant g-force event, such as when a truck swerves, suddenly accelerates, brakes heavily, or is involved in a collision.

Innocon claimed that the Drive Cams were intended to improve safety after the Ministry of Transportation’s Commercial Vehicle Operator Registration system (“CVOR”) raised concerns about their employees’ driving. As an operator of commercial vehicles on public roads, Innocon is required to maintain CVOR registration. A high CVOR rating, which is generally indicative of unsafe driving, can result in loss of registration for the operator. Innocon’s CVOR rating had been rising consistently for years and they were at risk of losing their registration, which would have prevented them from operating their concrete delivery business. Moreover, Innocon only installed the Drive Cam systems after previous measures aimed at improving driving safety had failed to reduce their employees’ number of collisions and driving offence convictions.

The Union argued that the internal cameras did not improve safety and constituted a serious and unjustifiable invasion of privacy because the cabs are effectively private offices in which drivers may “wish to sing, talk to themselves, or curse”. On the other hand, Innocon argued that the internal cameras were necessary to ensure that the cement trucks are driven safely because they are the only effective way to detect and address certain unsafe practices such as cellphone use and distracted driving. Moreover, Innocon argued that trucks with windows which are driven on public roads are not private spaces, and that any invasion of privacy was relatively minor because the cameras only saved videos when triggered with significant g-forces.

Arbitrator Laura Trachuk ruled in Innocon’s favour, finding that it was justified in installing the Drive Cam systems in its fleet of concrete trucks in the circumstances. She stated that there was no dispute that the in-cab cameras infringed the drivers’ privacy interests, but that the issue that had be determined was “whether the impact on the drivers’ privacy interests outweighs the benefit the in-cab camera provides in reducing the collision and CVOR rating, taking into account other options the Employer may have”. She found that Innocon had implemented the Drive Cam system to address a serious problem with driving safety, as evidenced by its CVOR ratings. Arbitrator Trachuk also accepted Innocon’s argument that the privacy interest at stake was at the low end of the spectrum and found that the impact on the drivers’ privacy was limited by design of the Drive Cam system. In particular, she noted that the system did not allow the employer to watch the drivers in real time and that the evidence established that only a very small portion of the drivers’ shifts were recorded. Crucially, she also found that Innocon “had considered other options before implementing the one that impacted on the privacy of its employees”, but that none of these less invasive measures had been effective in reducing their drivers’ number of accidents and driving offence convictions. Therefore, Arbitrator Trachuk concluded that Innocon’s legitimate business interest in improving driving safety did outweigh its employees’ privacy interests in the circumstances, such that it was justified in installing the Drive Cam systems.

Takeaways

The Innocon arbitration illustrates that employer’s legitimate business interests can outweigh employees’ privacy interests in the workplace, but a few key factors must be considered in any given case.

First, for an employer to be justified in implementing measures that infringe upon their employees’ privacy interests, they must be implemented to address a serious problem. Arbitrator Trachuk noted that the Drive Cam system has previously been challenged as violating collective agreements in five arbitration awards in other provinces, four of which found the employer to be justified in installing the system. In the only arbitration award finding an employer to not be justified in installing the system, the employer had failed to demonstrate that it had a safety problem, which lead the arbitrator to find that the intrusion on the drivers’ privacy was unreasonable. Thus, employers would be well advised to ensure that they only adopt intrusive employee-monitoring technologies where it is reasonably necessary to address a serious problem.

Second, an employer’s implementation of employee-monitoring measures is more likely to be found to be reasonable where the employer first considers less intrusive means of addressing the problem in issue. This is because the “balancing of interests” test is highly contextual, and an employer’s consideration of less intrusive options is a highly relevant factor. Consequently, where an employer first considers less intrusive measures to address a problem, but those measures prove to be unsuccessful in remedying the problem, the employer is more likely to be justified in adopting more intrusive measures.

Finally, employee monitoring systems that are designed so as to infringe on employees’ privacy as little as possible are more likely to be found to be reasonable under the “balancing of interests” approach. In Innocon, Arbitrator Trachuk clearly considered the fact that the Drive Cam system recorded only a very small portion of drivers’ shifts to support her finding that it was reasonable for Innocon to adopt it despite the intrusion on the privacy interests of Innocon employees. Therefore, where employers do adopt technologies that are intrusive on employee privacy, they should make efforts to ensure the technology is narrowly tailored to target the issues that it is being adopted to remedy, and that the technology is designed to infringe on employee privacy as little as possible.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.