Canadian HR Reporter

www.hrreporter.com 31 WHAT HAPPENS WHEN ROBOTS EFFECTIVELY TAKE OVER HR? world of work is no stranger to the use of performance metrics to measure productivity, be it piecework, call log volumes, incentive targets or annual performance reviews. However, performance measurement tools, at their most rudimentary level, have historically been driven by human management of not only the input variables but the assessment of the outcomes. So, what happens when robots effectively take over the human resources function? In recent years, we have seen the increasing use of artificial intelligence (AI) and, specifically, algorithmic management tools in the workplace to make important human resources decisions. These use a variety of technological tools and techniques to manage workforces, including reliance upon data collection and surveillance of workers to make automated or semi-automated decisions about the workplace. Algorithmic management carries with it the promise of increased efficiency and unbiased decision-making, but removing the human element from the decision- making process has the potential to create inequities, despite the objective of equality. There are also potential risks to the privacy and human rights of the employee. In addition to the increased use of automated application trackers, use of psychological testing in the recruitment and selection process and fingerprint scanners to monitor time and attendance, to name a few, algorithmic management and its impact are best captured by the use of wearables. Most people are familiar with Amazon and its warehouse workers using wearables, especially in the United States. Amazon's systems tracks inefficiencies in production and automatically generates a termination notice after a fixed number of automated warnings are given to an employee over a certain period of time. Similarly, these tools are used with respect to time and attendance issues. These decisions, and others like them, are all being made without the input of a real person at the first instance; although Amazon states that management can override automatic terminations. The use of algorithmic management tools such as wearables could create situations where employees face discrimination on the basis of their ability or need for accommodation. Decision-making that is absent the human element could result in factors such as ability or family status being adversely subjected to harsher scrutiny and discipline than other employees. Similarly, employees may encounter a greater degree of mental stress as a result of being electronically monitored. In one 2016 labour decision, a Quebec arbitrator allowed a grievance filed on behalf of a group of employees, ruling that an optimization project that sped up workflow and used computer programing to monitor performance caused the employees to suffer stress and entitled them to an award of moral damages. Wearables can also raise privacy concerns. An investigation by B.C.'s Information and Privacy Commissioner concluded that an employer requiring employees to wear body cameras and using video surveillance constituted collection of "personal information" of the employee under the Personal Information Protection Act. The commissioner held that the employer was not authorized to conduct the surveillance as it had not obtained its employees' informed consent and the surveillance was not reasonable. Recently, Canada's privacy com- missioner called for the regulation of AI to protect privacy and human rights in general, specifically around the use and development of AI systems. While the application of privacy legislation to the employment context is limited to federally regulated employers and employers in Alberta, British Columbia and Quebec, many employers outside of those groupings have adopted some form of privacy framework in light of their common law obligations. AI and algorithmic management are here to stay as a workplace tool and will likely only become more prevalent in the years to come. However, efforts must be made to find continued space for the operation of the human element and equity in employment decision-making, as balanced against the promised objectives of efficiency and unbiased decision-making. CHRR The use of algorithmic management tools like wearables could create situations where employees face discrimination on the basis of their ability or need for accommodation. THE SIMON KENT Founder and Senior Partner Kent Employment Law in Vancouver PHILIP GRAHAM Associate Koskie Minsky in Toronto

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