Law Times

Page 12 August 21, 2017 • LAw times www.lawtimesnews.com Big Data to have implications on labour law BY DALE SMITH For Law Times T he age of Big Data is coming to the work- place. With the changes, lawyers say clients need to be- ware of privacy concerns and the potential for the data to be used for discrimination. They also warn that employ- ers need to be aware of Big Da- ta's limitations as a predictive tool. "The reality is that Big Data is starting to have very serious encroachments on our private lives, and the aggregation of what is notionally public infor- mation results in shockingly ac- curate profiles of individuals. "And this is not just being leveraged in the public sector but increasingly being leveraged by the private sector," says Adri- an Ishak, partner with employ- ment law firm Rubin Thomlin- son LLP in Toronto. The Information and Pri- vacy Commissioner of Ontario recently released guidelines for how to use Big Data with re- gards to the public sector for policy-making. "Ensure that you have the legal authority to directly or in- directly collect any personal in- formation involved in your big data project and use it for the purposes of the project," coun- sel the guidelines. Labour and employment lawyers note that these guide- lines will likely serve as a tem- plate for future legislative changes that will apply to the private sector. While Ontario doesn't cur- rently have legislation that gen- erally protects an individual's rights to privacy, courts have nevertheless recognized "intru- sion upon seclusion" as a tort arising from violations of indi- viduals' privacy rights. Ishak notes that Big Data tools are already being used in the hiring process at certain companies, like employers us- ing aptitude testing to make hiring decisions. For example, Ishak recently dealt with a client who is building an automated video conferencing tool to pre- screen job candidates. He says the proposed tool will analyze a job candidate's content of responses, as well as their physical reactions and be- haviours. "A lot of conversation that I was having with in-house coun- sel was about that we will have limited control over the biases that will be going into the pro- gramming," says Ishak. "Is there inherent bias going into their programming and how is that going to impact soci- ety more broadly?" he adds. Ishak says lawyers need to be aware of different legal risks as they advise clients. If it turns out people are in- advertently being systematically screened out by data they pro- vide, Ishak notes that it could be problematic from a legal per- spective. Employment and contract lawyer Lisa Stam, founder of virtual law firm Spring Law in Toronto, says that when it comes to the collection of data, employ- ers face legal issues like finding a way to protect individuals' privacy while being transparent about where it comes from. She highlights to them that it's important not to run afoul of Charter rights around un- reasonable search and seizure when it comes to that collection of information. Employers who try to use analyses stemming from Big Data could face pushback from employees and unions, she says, so she recommends discussions with legal counsel about how the information is collected and used. "If you can share with your employees some of the informa- tion and where it's coming from, and clarifying why it's really rel- evant to that demographic of workplace, but if you're trying to treat humans like machines, there will be resentment," she says. Human rights tribunals, courts and judges applying case law tend to lean toward the ne- cessity to look to individual circumstances and whether ac- commodation is needed, she says. That's something Big Data may wind up missing, says Stam. Natalie MacDonald, manag- ing partner with Rudner Mac- Donald LLP in Toronto, shares concerns that Big Data results could be used to justify a dis- criminatory policy or proce- dure. "[E]mployment law is not about data and statistics — em- ployment law involves human beings and human relation- ships," she says. She recommends lawyers advise employers that they en- sure that if Big Data is used to form a methodology or provide any conclusions that they're not based on any prohibited dis- criminatory grounds. At the same time, lawyers need to be aware that if they are contributing data to any data- bases that they be keenly aware that they don't inadvertently breach solicitor-client privilege. "It could be very problematic for companies to rely on some sort of Big Data to form a meth- odology and thereby ignore the human relations in employment law," says MacDonald. "Employment doesn't look at things by way of graphs and math. That's the big conun- drum with data, and you could fall into some kind of unfair or f lawed methodology as a result." She adds, "It's important that we take into consideration context, and that's something that I fear is missing when we just look at things in terms of methodology or a mathemati- cal equation." LT LABOUR AND EMPLOYMENT BOUTIQUES It could be very problematic for companies to rely on some sort of Big Data to form a methodology and thereby ignore the human relations in employment law. 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