The employer wanted to replace a manual record-keeping system with a biometric scanner rather than a mechanical system. Despite the lack of serious security concerns, the arbitrator found that the privacy objections of the union were small when compared to the company’s need for accurate records.
The employer informed the union it intended to replace its manual time-keeping/attendance/security system with an automated software system that checked employees in and out using biometric scans. The union grieved.
About 180 workers were employed at the employer’s “mini mill” producing rolled steel from scrap. Sections of the mill operated 24/7 on rotating shifts, while other departments worked straight days.
The mill managed its time-keeping and attendance records manually, without punch cards or time clocks. Supervisors were responsible for entering hours worked into a computer and ensuring that the proper codes were applied to reflect shift premiums where appropriate. The system was laborious and prone to errors.
In the summer of 2010, the employer began to contemplate moving to an automated time keeping and attendance tracking system that incorporated biometric scanning. The union was informed in December 2010. The issue was raised again at a joint labour/management committee meeting one month later.
The employer took the view that the proposed system offered the prospect of greater accuracy and efficiency in managing payroll data and enhanced security and safety too.
The proposed system used a biometric scan to provide an individual identification for employees.
Biometric employee ID is developed by taking the data derived from individual measurements taken from a low-resolution scan of an employee’s hand and processing it through an algorithm to create a unique and encrypted biometric template for each employee. The scan is not a recognizable or transferable “fingerprint” in any conventional sense and, as the algorithm is a one-way process, a fingerprint or other identifier cannot be reverse engineered.
Digital scans over punch clocks
This technology allows employees to use a hand scanner to replace digital swipe cards or other mechanical trackers, such as punch clocks, when entering or exiting the workplace.
However, the union felt there was no compelling need for the technology and considered the scans to present a threat to employee privacy. The union also said the employer had not met its obligations to consult with the union on the creation of a new rule according to the terms of the collective agreement.
The employer said that by instituting biometric scanning it was not putting a new rule in place. The new process was simply an exercise of management’s rights undertaken for the legitimate business purpose of enforcing existing rules with respect to working hours and attendance.
The Arbitrator agreed.
“Employees have a right to privacy in the workplace that is not absolute but must be balanced against the legitimate needs of the employers. The principle of proportionality is critical, that is, the more intrusive the impact on employee privacy, the more compelling must be the business rationale.”
In this case, despite the union’s expressed concerns, the impact of biometric scanning on employee privacy was low, the Arbitrator said.
The information on the template from the scan could only be used for authentication purposes at the workplace and the arrangements the employer had made to store and destroy personal information were adequate.
It was important to remember that employers must have routine access to personal employee information in order to manage the employment relationship. Whether or not employers are using biometric employee scans to monitor comings and goings in the workplace, it is sure they are holding on to vital employee information such as home phone numbers, social insurance numbers, addresses, bank account numbers and more.
Accepted intrusions
The Arbitrator cited Arbitrator Slotnick in Agropur: “These are accepted intrusions, they are part of the modern workplace, and in my view are far more invasive and open to the possibility of misuse or abuse than a scan of part of a fingertip that is converted to a jumble of numbers and deleted right away.”
The Arbitrator accepted that the employer’s reasons for introducing the biometric scan system were legitimate and bona fide. The Arbitrator was also persuaded that adequate security and privacy considerations were built into the design of the system and that there was proper proportionality between the business rationale and the intrusiveness of the system.
Moreover, the installation of the new system did not violate limitations on management’s rights in the collective agreement that test management’s actions against standards of behaviour that are judged to be “reasonable, fair and equitable.”
The proposed new system was not arbitrary or discriminatory or proposed in bad faith.
“The employer has concluded, after review, that the biometric scan is the best option for increasing the efficiency and accuracy of attendance, time keeping and payroll … [The] system also enhances safety and security in the workplace in the event of an emergency. Those reasons are rationally connected to the problem of time keeping and attendance. The response is proportionate. Thus, the substantive limitation on the exercise of management rights is not contravened.”
The employer had met its obligations to consult with the union about the issue.
The grievance was dismissed.
Reference: Gerdau Ameristeel and United Steelworkers, Local 8918. Susan Tacon — Sole Arbitrator. Tom Walsh for the Union. Mark Contini for the Employer. August 29, 2011. 37 pp.
