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Fired by a robot!

robots

Amazon has been in the news recently for its practice of tracking warehouse workers’ box packing speed and firing them if they do not “make rate.” According to internal Amazon documents, related to a termination at a Baltimore Maryland warehouse location, Amazon’s automated tracking system automatically generates a series of warnings. After 6 warnings in 12 months, a termination is automatically generated if workers fail to meet “efficiency” standards. These termination decisions are made automatically by the system and without input from a real person, though Amazon says that supervisors are able to override the automatically generated terminations.

We have truly reached an age where people and robots are working together and where robots are effectively performing an HR function. HR, unlike a self-checkout or an assembly line robot, is something we normally think of as a soft, people only skill! Robots are branching out! However you may feel about machines in the workforce, we think it’s pretty cool that robots are expanding their skill set. While there are certainly risks to be navigated and considered, there are also undoubtedly gains to be had in terms of efficiency and elimination of bias. Robots do not have teacher’s pets! But should robots be making human resources decisions?

When your boss is a robot

So, effectively, Amazon workers are, to an extent, monitored and managed by these rate tracking robots. The robot supervisors also track the time an employee is “off task” – reportedly causing some employees to skip bathroom breaks. Decisions about productivity rates are made by (human) managers outside of the facility and changed only if more than 75% of the workforce fails to meet the targets. Targets are reviewed quarterly.

Amazon says that a worker can apply to have their termination reviewed by the general manager of their facility or to an appeals panel of their peers. In the Baltimore documents noted above, the terminated worker on one occasion gave the excuse that his “rate” was low because he was ill. He was told by the peer review panel that he should not have come in if his illness was going to slow him down and impact his rate.

Amazon in Canada

The above details are about Amazon in Baltimore, Maryland, where the employment law landscape is different – and much less worker-friendly – than it is here in Canada. However, Amazon has not been without its own bad press here in Ontario. Amazon courier contractors, who employed unionized workers, have gone bankrupt reportedly because the costs of a unionized workforce made it impossible to meet Amazon’s standards for low costs and efficiency. Courier drivers are also reportedly texted – presumably by an automatic system –  if they are not making deliveries fast enough.

Is this legal?

While we do not know if the Baltimore warehouse situation is playing out in Canada. If it is, it presents some red flags regarding legal compliance and employer obligations. In Ontario, workers are protected by the Employment Standards Act, the Occupational Health and Safety Act and the Human Rights Code.

While robots are good for treating everyone the same, workers who need accommodations based on protected human rights grounds, for example, disability, sex or age, need to be given those accommodations up to the point of undue hardship to the employer. In other words, not everyone should be treated the same. The standard of undue hardship for Amazon would be pretty steep – much more than just having to tolerate lower efficiency from one worker. This means that if a worker could not work as fast as Amazon expected because, for example, they had an injured knee or had to take breaks to pray, terminating them for not making rate would be a violation of the Human Rights Code.

Similarly, employers have an obligation under the Occupational Health and Safety Act to provide safe working conditions. Requiring an employee to work so fast that they cannot take bathroom breaks is arguably not safe.

In Canada, employees cannot be terminated “at will” the way they can in the States. While absent human rights reasons, Amazon could terminate an employee for failing to “make rate,” it is highly unlikely that this reason would constitute cause, meaning that the terminated employee would need to be provided with notice of termination.

From a Canadian perspective, the practice of automated firing by a robot is concerning. While in some sense, the elimination of human bias is good from a human rights perspective, terminating an employee without exploring the possible human rights reasons for which they may not be able to “make rate” is risky!

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Lisa Stam, Spring Law

Founder of Spring Law, Employment and Labour Lawyer at Spring Law
Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technology in the workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media and technology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.
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