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Can a Law Firm Force Support Staff to be Finger Scanned?

UPDATE:  Here is a CBC Radio report on this story, including an interview with the managing partner who explains how the system works and why they are introducing it.

A Toronto law firm called McCague Borlack is forcing its support staff to be finger scanned  so that the firm can track their whereabouts throughout the day.  Here is a Toronto Star story, in which the managing partner is seen posing happily beside the finger scanner. I have to admit that I find it odd that the firm would want this sort of publicity, which I suspect will be negative. The vast majority of workers will find forced finger scanning by their employer to be offensive.  Can you imagine any top prospects wanting to apply at this firm now, knowing that their every move will be monitored by biometric scanning.

An interesting aspect of this story is that someone–I presume the employees affected–have started a website deriding the forced finger scanning called ‘fingercampaign”. An example of how the web can empower workers.  The story has now exploded in the media.

NOTE: If you are a support staff subjected to finger scanning, this is not legal advice.  This is a forum for conversations with students about workplace law.  If you want legal advice about a particular situation at your workplace, you should speak to a lawyer, contact a union, or contact the Human Rights Legal Support Centre.

Is forced finger scanning of support staff at a law firm legal in Ontario?  Well, as always, there’s three places to look:  (1) the employment contract; (2) tort law; and (3) statutes.  Let’s very quickly consider each.

Is Forced Finger Scanning of Law Firm Secrataries and Support Staff a Breach of the Employment Contract?

To answer that question, we’d have to know what the employment contract says.  We don’t have that information.  If the workers were unionized, then ‘just cause’ protection and limits on employers unilateral rule-making powers imposed by labour arbitrators could prevent finger scanning of support staff, at least in the absence of strong evidence of theft issues. Arbitrators have sometimes allowed biometric scanning of employees fingers when the scan is not saved and is not in a form that could be used for alternative purposes other than identifying the employee, so we would need to more about the particular system and the pressing problem being addressed by the employer.  However, it’s probably safe to assume that suport staff at a Bay Street law firm are nonunion, even though some support staff at more progressive law firms are unionized.    So one option for these workers if they are unhappy is to unionize like other legal secretaries have done at other firms.

In theory, it’s possible for an individual (nonunion) employment contract to include a clause expressly granting the employer the right to institute finger scanning of the employee.  But if we assume that the contract doesn’t include such a clause, I have my doubts that a court would find an implied right to do this as a means of tracking efficiencies, though I suppose a judge could find that this falls within the general right of employers to direct the workforce in pursuit of its economic interests. What do you think?

Can you think of an implied contract term that forced finger scanning of support staff could violate?

How about the implied obligation of employers to treat employees with decency, respect, civility, and dignity? That is an implied term of employment contracts in Ontario.  Courts have found breaches of this term in cases involving employer harrassment and dishonesty, as well as for failure to prevent and stop a poisoned work environment, and for installing secret surveillance cameras at work.  Do you think that implied contract term is wide enough to catch a law firm employer that imposes forced finger scanning only on the most vulnerable workers in a law firm?  If so, then the hypothetical law firm in our scenario would be in breach of the contracts of the support staff, and that breach would, in my opinion, be seen by a court to constitute a constructive dismissal.  In any event, a court could find that forced finger scanning as a means of improving efficiency renders the working environment intolerable within the meaning of Shah v. Xerox, and thus a constructive dismissal.  If the finger scanning is a constructive dismissal, then employees could quit and sue for reasonable notice damages.

The trouble with using constructive dismissal law to address the finger scanning is that it requires the employee to quit.  Why should these employees have to quit their jobs if the employer is breaking the law by forcing the finger scanning?  It’s a tough job market out there.  It might be possible to sue for breach of the implied term requiring dignity and decent treatment of employees as a stand alone breach of contract, without quitting.  This approach is untested, since no employee that I’m aware of has tried to sue their employer for breach of the implied duty of decency outside of a constructive dismissal complaint.  However, since the obligation to treat employees with dignity and decency is a contract term, it follows that an empl0yee could sue for its breach without also quitting.  I explained this idea years ago in an article I published in the Queens Law Journal[I'm still waiting for an employee lawyer to put the argument forward that since the implied duty of decent treatment is a stand alone contract term, damages are recoverable for its breach independent of reasonable notice damages. But that's another story]. The risk is that the employer would respond to the lawsuit by firing the employees anyways, or that a court would find that suing an employer for breach of contract constitutes a repudiation of the contract by the employee.

Does Forced Finger Scanning Violate the New Tort of Intrusion Upon Seclusion?

We don’t have a free-standing tort of invasion of privacy in Ontario, but recall that the Court of Appeal recognized a new privacy tort in Ontario last year called the Intrusion Upon Seclusion. The facts in that case involved one employee snooping on another employee, which is very different than the forced fingerprinting situation.  However, remember the elements of the tort:

[71]         The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

What do you think?  Are those elements satisfied in the case of forced finger scanning of support staff at a law firm?

Does a statute address forced finger-printing of legal assistants at a Toronto law firm?

There is no Privacy Act as such in Ontario, as there is some other provinces.  My sense is that the more employers screw around with these sorts of practices–including forced finger scanning and demands for social media passwords–the more momentum will grow for such legislation.

There is legislation that addresses privacy issues, including the Personal Health Information Protection Act, the Freedom of Information and Protection of Privacy Act, and the Municipal Freedom of Information and Protection of Privacy Act. This legislation targets mostly government and applies to information that might be made public.   I don’t think this legislation governs a private sector employer that fingerscans employees, but if there are any privacy law experts who believe otherwise, please let us know.

The Employment Standards Act prohibits the use by employers of lie-detectors on their employees,  This section could easily be expanded to include finger scanning/printing as well.  But that is not the case yet.

There is another statute that could apply to this situation.  Can you think what it is?

Ask yourself this question:  According to our facts, it is only support staff that are subject to finger scanning, not the other firm professionals.  What is a charateristic of the overwhelming percentage of legal support staff in Canada?  Forced fingerscanning is a workplace rule, an oppressive one at that, and we know that workplace rules cannot directly or indirectly discriminate against certain classes of workers.  A rule that falls disportionately on one class of people can violate human rights law, right?

Can you develop an argument as to why forced finger scanning of only support staff at a large law firm constitutes a violation of the Human Rights Code?  Think about this:  Could a law firm introduce a requirement that only women employees be subjected to finger scanning and be required to scan in and out all day long?  Look at Section 5.   If you think not, then ask yourself this:  Rather than target women directly, could the employer instead apply the requirement only to one job in which all, or almost all of the workers are women?  Read Section 11. What do you think?  Does it matter what the gender composition is of workers in the firm who are not subject to the forced finger scanning?

If forced finger scanning of support staff is a violation of the Code, what benefit does this approach have for employees over pursuing a breach of contract or tort lawsuit?  Hint: Think about the Human Rights’ Tribunal’s remedial powers.

Have we missed any potential legal avenue?

Do you think that a law firm should be legally entitled to force employees to be finger scanned as a condition of employment?

What would you advise the law firm, or the employees, if they came to you for legal advice about this situation?

What about you HR folks.  Is finger scanning and monitoring your employees’ finger scans supported by HR theories on how to motivate workers?

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3 Responses to Can a Law Firm Force Support Staff to be Finger Scanned?

  1. Lungard P Skaarsgard Reply

    October 30, 2012 at 3:29 pm

    If we can’t even get a consensus that it is appropriate to call for mandatory flu shots for those employees dealing with vulnerable clients susceptible to the flu, I don’t understand how this could ever be justified. In my opinion, it is reaching (almost) as far, and does not present near the benefit that a mandated flu shot would.

    I’m sure an employer may be required to prove that less invasive means would be ineffective in ensuring productivity.

  2. JLeung Reply

    November 1, 2012 at 1:04 pm

    I am not fully informed about privacy law, but your points regarding the employment contract and relevant statutes sound fair. The point I would like to bring up is the key distinction between the Intrusion Upon Seclusion tort seems to require a reasonable expectation to privacy, and arguably the clear implementation of such a system by a firm would negate that. It might also be worth noting that while it might be possible to argue that it is wreckless, it can be attributed to the employer’s right to ensure efficiency like time logs are traditionally used. However, perhaps there could be grounds for a human rights complaint on the basis that the firm is ONLY fingerprinting support staff, which could be interpreted as discriminatory and potentially demeaning?

    Disclaimer: I am currently a law school applicant and not a qualified lawyer so the above are just my opinions based on readings I have come across up to this point.

  3. Carol Smith-itosan Reply

    March 10, 2013 at 10:47 pm

    Lawyers operate in a highly regulated economic environment; the Law Society of Upper Canada regulates lawyers for the “public benefit”. A lawyer’s conduct will attract the attention of the Law Society, if that lawyer chooses to present to the public media to discuss professional matters, such as labor policy at a law firm. A law firm found culpable of “constructive discrimination” in its labor policies will attract sanction from the Law Society also, given the provisions of the Law Society Act. This is an additional element in this case re McCague Borlack LLP. Other areas of employment also face similar regulations.

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