Concerns raised over tracking of migrant workers in British Columbia

Privacy rights were in the spotlight recently after a migrant workers’ advocacy group called foul when it came to the apparent tracking of temporary foreign workers (TFWs) at farms in British Columbia.

The workers are constantly tracked by means of wearable devices and scanning stations set up at the end of fruit and vegetable rows, according to Raul Gatica, co-founder of the Migrant Workers Dignity Association in Vancouver, and this is affecting their lives in a negative way.

“As soon as you finish the box, they also scan the barcode in the box and they will check it out to see if you did good, you did bad, you did more or less, and then at lunchtime, they put a big screen in the lunchroom and they just (show) the different names.”

Some workers are reporting they “can’t even sleep” because they don’t know where they are in terms of productivity and they “worry all the time” about their status in Canada, he said.

“So the worker who sees his name (in) the red light, when they (come) back from lunch, they start working faster and faster and faster,” said Gatica. “The people who are in red lights, they are in danger of (being sent) back to Mexico, to Philippines or to a Caribbean island.”

Consent to wearing the devices was often not given because many TFWs have no choice if they want to work on a farm, he said.

“The employer never asked them... they just say, ‘You have to use it, that’s an order.’”

But while growers have heard that GPS tracking devices are being used on some farms, none of the 60 or so members of the BC Greenhouse Growers’ Association said they are using the technology, said Linda Delli Santi, executive director of the association in White Rock, B.C.

“What’s the point of tracking them anyways?”

A lot of the workers do, however, carry cards or fobs, she said.

“When they come in to work, they swipe the card to say that they’re here. When they leave, they swipe it again to say, ‘I’m gone...’ When they start working in a row, they swipe it; they press a code number on the machine to say what job they are doing in the row, like pruning or picking and that’s it.”

The technology is not meant to keep tabs on workers but is “a labour management tool to make sure you have enough workers to do the job that needs doing in a timely fashion,” said Delli Santi.

“If they swipe the card every time they work in a row, and their productivity is very low, that’s more important than knowing where they spent their time.”

Worker output is the main thing the growers want to monitor, she said.

“You are stretched pretty thin with manpower as it is, and none of the owners or senior management staff, they all work in the greenhouse too, they don’t have time to be GPS-tracking someone and figuring out where they are. They are looking at productivity.”

Worker vulnerabilities

If in fact farm workers are being tracked using GPS devices, a special concern is “the ability to understand and give proper consent” because many don’t understand English, said Preston Parsons, associate lawyer in the labour and employment group at Overholt Law in Vancouver.

“People can’t consent when they can’t understand what they are consenting to: They have to have informed consent.”

If TFWs don’t want to be part of the tracking, they don’t really have much choice because their work permit is with a specific employer, said Eleni Kassaris, partner at Blakes in Vancouver. 

“So if that is part of the employer’s business, they are almost between a rock and hard place as to what they do.”

But the workers are not without a potential remedy in B.C. if they feel their privacy is being compromised, said Kassaris.

“Where they could assert their rights is they could complain to the privacy commissioner if they think the employer is going beyond the bounds of what the legislation permits.”

The Migrant Workers Dignity Association is hoping to recruit a migrant worker to lodge a complaint before the privacy commissioner, but this is easier said than done, according to Gatica.

“It is a lot of risk because if they do the complaint, they will lose their job. So we need to figure out how they can do that in a safe manner,” he said. “No one here is able to guarantee that the worker is not going to lose their job.”

How much is too much?

But how much can employees expect in terms of privacy if they do agree to being tracked by their employer?

“If they do give consent, what they are basically allowing the employer to do is engage in any type of surveillance they want to, and to use that data that they are gathering for whatever their purposes might be,” said David Zweig, chair of the department of management at University of Toronto-Scarborough.

But consent has a limit, said Parsons. “The employer can’t just request consent — even if it’s freely given — to things that are unreasonable.”

In the case of the migrant workers, tracking them to assess productivity could be considered a reasonable purpose to determine staffing levels and to train workers, said Parsons.

When an employer decides to establish a level of surveillance, the consequences should be considered, said Zweig.

“If it’s reasonable and it’s related to job performance and it’s being used to establish reasonable and achievable performance targets, OK, but if it’s not, and it’s being used for punitive purposes, or to exact an additional ounce of effort out of everyone in the name of efficiency, then you have to look at what the consequences and the reactions are going to be,” he said.

It is understandable why employers would want to constantly monitor employee behaviour, but at what cost?

“It’s easy, it’s cheap. From the organization’s perspective, it’s way easier to monitor more and more employees and not have human beings engaging in this activity,” said Zweig.

“But what are you using that information for? What kind of impact does it have on employees?”

This type of monitoring has been employed for discipline in the past, he said.

For example, in call centres, “It’s couched under the rubric of training, but often that’s what it’s being used for.”

“Often, we get into this cycle of deviance that is perpetuated by these monitoring systems, where the employer is trying to enact more and more control, but it actually leads to greater and greater surveillance to manage all of the deviance that is elicited by them in the first place,” said Zweig.

“People will find ways to get around it.”

When humans lose control, they always find ways to re-establish control “to restore the balance in your mind, to get back control,” he said.

“Once you give up every aspect of your privacy, you relinquish all control over everything.”

Instead of establishing a surveillance regime, perhaps more employers would achieve more productive results by believing workers, he said.

“What I’ve long argued is we don’t need all this surveillance to maintain control, we can actually establish it by creating a better workplace and building more trusting relationships with people, because people who are given trust will react with trust.”

When an employer wishes to track an employee, that worker must be made aware she is being monitored, even if no express consent is provided, according to Zweig.

“If an employer is going to be using that kind of surveillance technology, they should let their employees know exactly what it’s going to be used for.”

Employee monitoring has been happening for decades, it is now “increasingly pervasive,” he said.

In most cases, an employer cannot monitor an employee in secret, unless it is conducting an investigation, said Kassaris.

“Generally speaking, you’re not supposed to be doing things in secret behind the backs of your employees. They are supposed to have notice of what you are monitoring and for what purposes.”

On the other hand, if an employee decides to revoke consent, that could result in termination.

“(Employers) could say that it’s a term of their employment that they need to perform, understanding that the tracking is in place and will apply, that there’s no opt-out, per se,” she said.

“‘If they are just saying, ‘No, I don’t want to be tracked,’ I do think that would be insubordination and the employer would probably be justified in terminating the employment.”

If a worker feels tracking or monitor is too onerous, he may refuse to be watched. An employee may petition the privacy commissioner that “tracking went too far and they were right to refuse to be tracked,” or she could implement a civil claim after the fact for an unjust firing, said Kassaris.

“It would be difficult, however, for them to assert that claim if the farms or other business that might have tracking can establish that this was necessary for legitimate business purposes, implemented properly in accordance with privacy laws,” she said.

Employers are also able to use tracking data for discipline, but only in certain instances, said Kassaris.

“You can only do that if it’s one of the articulated purposes to employees: They have to be warned, you can’t just monitor them and say it’s for their safety or for efficiency, and then fire them if you catch them doing something improper on video,” she said.

“If you tell them in advance that ‘We’re monitoring the workplace for the following reasons — including potential discipline if you do something improper in your employment’ — then there is some case law out of the privacy commissioner’s office that suggest that can be reasonable.”

Lack of awareness

Many employers are not fully cognizant of the many issues surrounding privacy, said Kassaris.

“There is a lack of education about the ins and outs of privacy laws; people get very nervous when they hear they are being tracked and they don’t understand that it can be permissible in many cases and, as a result, they feel violated.”

But for most employees, the story is different, she said.

“The workforce is sophisticated enough to understand that technology is at the point where tracking is possible, but that’s different than believing they are doing it.”

For new companies, privacy considerations should not be put on the back burner, said Parsons.

“It’s really valuable for a new employer, as part of their startup budget, to consider sitting down with an employment lawyer or senior HR personnel, and say, ‘Can you tell me, from an employment perspective, what are all the pieces here, including privacy that need to be in place?’” he said.

“It does highlight the value of having HR personnel at the office or at least somebody senior who could deal with that, or at least raise the organization’s consciousness to be aware of it.”