Toronto employer’s new pay system would have been more efficient, but it contradicted workplace rules in collective agreement and raised privacy concerns
One Ontario company may have been a little too eager in adopting an electronic payroll system that was too intrusive and inconsistent with established workplace rules.
York Marble Tile & Terrazzo is based in North York, Ont. Its traditional way of paying employees was for people to complete timesheets on a weekly basis. The superintendent managed the payroll process and each week he travelled to various jobsites to collect the timesheets.
However, the process was problematic as the timesheets weren’t always submitted at the same time, so it took the superintendent two days or more to gather them all, which was time he needed to spend on jobsites.
Payroll software on cellphones
The company decided it needed to find a more efficient way of managing payroll and found a digital timesheet application called Tsheets. Tsheets allows employees to electronically record the time they start and end their workday by “clocking in” and “clocking out” with an application on a cellphone.
The data from the app on the employee’s phone is then sent to the Tsheets server through the cellphone’s data or a Wi-Fi connection, which then passes it along to the employer.
Employees are also able to send messages to the employer and the employer is able to set up notifications to employees through the Tsheets app.
The app can also track the location of an employee’s cellphone through the phone’s global positioning system (GPS) technology and send the data to the Tsheets server and the employer while the employee is “clocked in” during the workday. This feature is activated by default unless the employer opts out.
In this case, York Marble didn’t opt out so Tsheets would track employees’ locations while they were working. When an employee “clocked out” for the day, the app stopped sending GPS data.
With Tsheets implemented, York Marble would be able to generate reports from the data that could specify information about the time spent on particular projects, per employee, overtime, breaks and unpaid time off.
On Nov. 1, 2018, the company informed employees that it was implementing Tsheets effective Nov. 12. It provided information on the app and told them they would be required to download the app on their cellphones “as this is going to be the only way York Marble will be collecting timesheets from employees.” The company noted that any employees who didn’t download the app and submit their hours that way would “only delay your processing of your payments.”
York Marble didn’t think it would be a problem that employees had to use their personal cellphones to use Tsheets since some employees already communicated to their foreman with their personal device. It would also be too costly to provide company cellphones to employees.
Once Tsheets was implemented, the superintendent spent significantly less time on the company’s payroll and had more time for other tasks.
The company set up an alert through the app that reminded employees to “clock in” at the start of their shift — the alert showed up on employees’ cellphone regardless of whether they were logged into the app or scheduled to work.
Concerns about workplace policies, employee privacy
Some employees who were aware that York Marble hadn’t disabled the GPS tracking on Tsheets were concerned about the collection of their personal data.
The union grieved the implementation of Tsheets, arguing that York Marble’s new timesheet process was inconsistent with the collective agreement’s payroll article by unilaterally requiring employees to install a digital timetracking app on their personal cellphones.
The union pointed out that the collective agreement stipulated that employees should submit their timesheets by phone, email or fax “at the end of the business day on the Monday following the workweek for which the timesheet applies.”
- By implementing Tsheets, the company was restricting the employee’s ability to choose the method of submitting timesheets and forcing employees to submit them daily instead of weekly, said the union.
In addition, the collective agreement stated that “use of personal electronic devices, including but not limited to cellphone, pagers and music players, are not permitted during working hours on any project” — which meant using cellphones to clock in and out contradicted the cellphone ban during work hours.
The union also argued that the new process was unreasonable, as York Marble could have achieved the objective of saving time on its payroll in a less intrusive way — without forcing employees to use personal devices or track their location — by enforcing the Monday deadline for timesheet submission more consistently.
Labour relations board finds change unreasonable
The Ontario Labour Relations Board agreed that York Marble’s implementation of the Tsheets process was inconsistent with the collective agreement, which included a method of filing timesheets that the company negotiated with the union. The agreement listed the ways employees could submit timesheets — by telephone, email or fax — and also required them to sign a copy upon receipt of their paycheques.
The board also noted that the timesheet process was phrased so that it didn’t include any possible methods to submit timesheets other than the three listed — Tsheets wasn’t a stipulated method, so using it for payroll was inconsistent with the payroll process as outlined by the collective agreement.
On top of that, Tsheets was entirely electronic with no mechanism for electronic signatures, so it wasn’t possible for employees to fulfil the requirement of providing signed copies of their timesheets when they received their paycheques, said the board.
The board pointed out that cellphones were clearly prohibited during working hours on any project, but, in order to “clock out” on Tsheets, employees would have to use their cellphones during working hours.
As a result, the procedure for using Tsheets was also inconsistent with workplace rules under the collective agreement.
Overall, the board found that York Marble’s implementation of the new payroll system was an unreasonable exercise of management rights because:
- it required employees to use their personal cellphones for work-related purposes without compensation and forced employees to own, carry and use their personal cellphones at work
- it forced employees to use the data from their own cellphone plans or relocate to an area with Wi-Fi in order to “clock out” of their shifts
- data on employees was stored, used and potentially shared without any information on how it was protected or used.
“It is obvious there could be real privacy issues with allowing Tsheets (and possibly the employer) to having access with the data collected and controlled on personal cellphones,” said the board, adding that York Marble had the option of deactivating the GPS tracking option but didn’t do so.
In addition, the board pointed out that sending notifications to employees’ cellphones — regardless of whether they were scheduled to work — was a form of control over personal cellphones that was unreasonable.
The board determined that York Marble’s unilateral implementation of the Tsheets payroll system was unreasonable and violated its collective agreement. It agreed with the union that if the company’s primary objective was to save time in processing payroll, it could have enforced the existing methods and timelines for submitting timesheets outlined in the collective agreement, which would have saved time but been much less intrusive.
For more information see:
Brick and Allied Craft Union of Canada & Brick and Allied Craft Union of Canada, Local 31 v. Terrazzo, 2019 CanLII 98862 (Ont. Lab. Rel. Bd.).