Canadian HR Reporter

CANADIAN HR REPORTER September 4, 2017 10 NEWS Concerns raised over tracking of migrant workers in British Columbia But province's growers' association claims tools used to measure productivity BY JOHN DUJAY PRIVACY RIGHTS were in the spotlight recently after a migrant workers' advocacy group called foul when it came to the appar- ent tracking of temporary foreign workers (TFWs) at farms in Brit- ish Columbia. The workers are constantly tracked by means of wearable de- vices and scanning stations set up at the end of fruit and vegetable rows, according to Raul Gatica, co-founder of the Migrant Work- ers Dignity Association in Van- couver, 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 fast- er," said Gatica. "e people who are in red lights, they are in dan- ger 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 be- ing used on some farms, none of the 60 or so members of the BC Greenhouse Growers' Associa- tion said they are using the tech- nology, said Linda Delli Santi, ex- ecutive director of the association in White Rock, B.C. "What's the point of tracking them anyways?" A lot of the workers do, how- ever, 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." e 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 moni- tor, she said. "You are stretched pretty thin with manpower as it is, and none of the owners or senior manage- ment staff, they all work in the greenhouse too, they don't have time to be GPS-tracking someone and figuring out where they are. ey are looking at productivity." Worker vulnerabilities If in fact farm workers are being tracked using GPS devices, a spe- cial concern is "the ability to un- derstand and give proper consent" because many don't understand English, said Preston Parsons, as- sociate 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: ey 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 employ- er, said Eleni Kassaris, partner at Blakes in Vancouver. "So if that is part of the em- ployer'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 compro- mised, said Kassaris. "Where they could assert their rights is they could complain to the privacy commissioner if they think the employer is going be- yond the bounds of what the leg- islation permits." e Migrant Workers Dignity Association is hoping to recruit a migrant worker to lodge a com- plaint before the privacy commis- sioner, 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 work- ers, tracking them to assess pro- ductivity could be considered a reasonable purpose to determine staffing levels and to train work- ers, said Parsons. When an employer decides to establish a level of surveillance, the consequences should be con- sidered, said Zweig. "If it's reasonable and it's re- lated to job performance and it's being used to establish reason- able 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 em- ployers 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 in- formation for? What kind of im- pact 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 train- ing, 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 ac- tually 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-estab- lish 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 sur- veillance 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 be- ing 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. WORKER > pg. 16 Credit: Anton Bielousov (Shutterstock) Seasonal farm workers harvest cranberries in 2014 in Richmond, B.C. "I've long argued we don't need all this surveillance to maintain control."

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