Mutiny on the Borlack? Bay Street Workers Rebel Over Attack on Privacy

November 1, 2012 Update: there has been significant coverage on this story today, see: Toronto Star; Above The Law; Huffington Post; Canadian Lawyer Magazine; and Metro.

November 2, 2012 Update: if you're a lawyer at McCague Borlack you better watch how much you're drinking. Read this link and see the last two paragraphs for a veiled threat. Yikes!

It has been said that the flame of anger is hard to douse once lit. Yesterday I was alerted to a bizarre story involving Bay Street insurance litigation heavyweight McCague Borlack LLP. Essentially, the issue boils down to the firm's management imposing a fingerprinting system to track legal secretaries throughout the workday while they complete individual tasks; apparently, the firm's management has a concern regarding the productivity of their legal secretaries. Unsurprisingly the legal secretaries targeted by the decision aren't exactly enthralled with the decision and have started an online guerilla campaign to contest the demand that their fingerprints be required. This post is mainly going to focus on the privacy implications of this decision; furthermore, it should be noted that there are tort, gender discrimination, and human rights implications that David Doorey has expertly covered over at his blog.

The intersection of biometrics and privacy is a growing sub-field within the area of workplace law. Previously, the technology necessary to implement fingerprinting programs simply was too expensive for most firms to implement, but with progressive advances in technology the costs have been reduced. The surprising aspect in this case is that workplace monitoring technology for productivity purposes generally isn't deployed in white collar professions to track individual tasks, rather it has traditionally been the domain of the manufacturing and service sectors. McCague Borlack's decision seems to be a modern and extreme update on the time and motion studies of the early twentieth century.

Arguably, it appears that employers in Ontario have the ability to implement fingerprinting technology within the workplace, but just because an employer can do something doesn't mean that it should. The legality of this decision is dicey as it appears that the fingerprinting will target a group of employees who are predominately female and who occupy low-status positions. The fingerprinting policy appears to be a classic example of constructive discrimination where a supposed facially neutral policy disproportionately impacts a protected group under Ontario's Human Rights Code. The ability of the secretaries to contest management's decision is severely hampered by a lack of a Union to make collective representations to the employer or file a grievance over the necessity of fingerprinting employees. In this situation McCague Borlack's decision has caused a small internal insurrection, untold damage to the firm's reputation, and caused a divisive social media campaign to take root. 

I suspect a lot of people will question the competence of the firm's management given that this decision appears to be ill conceived; furthermore, it may be difficult to attract high-quality support staff going forward given that most people just don't like the idea of being fingerprinted everyday at work. Incredibly, McCague Borlack appears to be dealing with the concerns of their staff using heavy-handed tactics, for example: consider this posting advertising for seven legal assistant positions in Toronto - this is a thinly veiled threat to whoever is behind the "Finger Campaign".

I've culled some jurisprudence on biometric scanning, see: here, here, here, here, here, here, here, here, and here. Also, here are some documents discussing privacy and biometrics: Hicks Morley's All About Information blog posts on biometrics; Ontario's Information and Privacy Commissioner's report on privacy and biometrics; and, the Privacy Commissioner of Canada's research on biometrics. Finally, here's a talk by Ann Cavoukian discussing the concept of surveillance by design, see: