PIPEDA Case Summary #2003-220

Telemarketer objects to employer sharing her sales results with other employees

[Section 2; Principles 4.3 and 4.3.5, Schedule 1]

Complaint

A telemarketing agent complained that her team manager had unreasonably shared her personal information, in the form of sales figures, with other company employees without her consent.

Summary of Investigation

Working in the telemarketing centre of a telecommunications company, the complainant was a member of a team of sales agents under one manager. She earned a base salary, plus commissions based on sales results. She alleged that her team manager was e-mailing information about individuals' sales results monthly, discussing this information at team meetings, and posting it in a common area.

The complainant contended that information about her personal performance in the workplace should be kept confidential. She objected to it being used to increase sales and create competition among team members and suggested that it be used only for private coaching purposes. She alleged that the company had not obtained her consent to share her sales figures with other employees and that she had received no written documentation to explain the purpose of gathering and posting sales statistics.

The company confirmed that its sales team managers made a practice of sharing individuals performance information among team members in various ways and acknowledged that the purpose was to motivate employees and promote competition in order to increase sales. The company maintained that all new team members were informed of the practice and that the use and purpose of sharing sales figures was re-emphasized in subsequent team meetings.

The company's position was that the sharing of sales figures was a proven and widely accepted best practice in sales-based operations, was integral to its own sales management process, and was essential to the successful operation of a telemarketing team. The company did not consider sales figures to be its sales agents' personal information since they were produced in the course of business activities and deemed integral to the business. It pointed out that sales figures had traditionally been posted in many of the company's highly competitive sales environments and suggested that its sales agents generally expected such practice and saw it as a normal and appropriate way of doing business. The company also took the position that, even if posted sales results were found to be personal information, reasonable use of such information within the workplace should not require the express consent of the individual employee.

The Direct Marketers Association confirmed that the posting of sales results was a common, well-known, and widely accepted method of motivating agents to sell in highly competitive, incentive-based sales environments, notably telemarketing.

Commissioner's Findings

Issued September 15, 2003

Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act applies to any federal work, undertaking or business. The Commissioner had jurisdiction in this case because a telecommunications company is a federal work, undertaking or business as defined in the Act.

Application: Section 2 defines personal information to be "information about an identifiable individual." Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, and disclosure of personal information, except where inappropriate. In this case, consideration of Principle 4.3 also involved Principle 4.3.5, which establishes the relevance of the individual's reasonable expectations in matters of consent.

On the question of whether the information at issue was personal information as defined in section 2, the Commissioner deliberated as follows:

• Although it is recognized that sales statistics of individual employees are information that the company itself generates, records, and processes for reasonable and legitimate business purposes, it is nonetheless clear that sales records attributed to the complainant in order to indicate her on-the-job performance relative to that of others constitute information about her as an identifiable individual.
• Since there is nothing in the Act to suggest that personal information and company information must always be mutually exclusive, we find the information at issue to be personal information for purposes of the Act.

On the further question of whether the company had the complainant's consent, in accordance with reasonable expectations, to share her personal sales records with the other members of her telemarketing team, the Commissioner deliberated as follows:

• Since Principle 4.3 invokes both knowledge and consent, it is first necessary to consider whether the complainant had knowledge of the purposes in question.
• The complainant stated that the company had never given her any documentation explaining the purposes, yet her letter of complaint indicated that she was nevertheless well aware of the purposes for which the company was sharing and posting her sales records. He was inclined therefore to accept the company's assertion to the effect that its managers do make reasonable efforts to explain to team members the reasons behind such practices.

• Moreover, in recognition that such practices are common and widely known in incentive-based sales environments, he considered it reasonable that a willing participant in one such environment would expect to be affected to some extent.
• The complainant did not expressly consent to the practices, but consent may also be implied. In his view, by willingly participating in a telemarketing environment in which the well-known and well-established practices of sharing and posting personal sales records were reasonably to be expected, the complainant gave implied consent to the practices.
• He found therefore that the company was in compliance with Principle 4.3.

The Commissioner concluded that the complaint was not well-founded.

Further Considerations

The Commissioner commented that recommendations were nevertheless in order, by way of helping the company adjust to the notion that sales figures were no longer deemed solely the company's information, to be treated as it saw fit, but rather were also employees' personal information, to be treated in accordance with the letter and spirit of the Act. He pointed out that, although the Act recognized the legitimate needs of organizations to use personal information in the workplace, it did not tolerate uses that were indiscriminate, ill-defined, unnecessary, inconsistent, or otherwise unreasonable. He suggested that the company consider its treatment of employees' sales figures in this light, with a view to improving its practices where warranted.

He noted that the posting of sales figures in common areas was one potentially problematic practice, and he suggested that the company consider certain questions in that regard. To what extent was the practice really necessary, given that team managers already disseminated the figures by e-mail and discussed them at team meetings? Was it necessary to post the lists in their entirety - that is, the full rankings of team members, thereby drawing negative attention to the least successful - or would it serve the company's incentive purposes just as well to post only the figures of the top sales agents? Finally, since "need to know" was the guiding principle for use of personal information in the workplace, what provisions did the company make to define the "need to know" among its employees and to ensure that posted lists of figures were seen only by those who had legitimate need to see them?

He made the following specific recommendations:

1. The company should review and consolidate its policy and practices relating to the collection, use, and disclosure of employees' personal sales records so as to ensure compliance with the Act throughout the organization. In particular, the company should ensure that its managers use employees' personal sales records in a consistent manner, only for reasonable, well-defined, and identified purposes, and only to the extent necessary for the fulfilment of those purposes.
2. The company should revise its privacy policy for employees so as to incorporate provisions specific to the collection, use, and disclosure of employees' personal sales records.
3. The company should take appropriate steps to ensure that all persons to be hired as sales agents are explicitly informed of the company's practices and purposes relating to personal sales records.