Reasonableness and transparency required for employee monitoring, says McMillan’s Kristen Pennington

Tools have risen in popularity as employees shifted to remote work

Reasonableness and transparency required for employee monitoring, says McMillan’s Kristen Pennington
Kristen Pennington, McMillan LLP

Not all employee-monitoring tools are legal, and employers must consider the reasonableness of their proposed monitoring method and balance the employee’s privacy interests with their own interest in managing their business and workforce, says Kristen Pennington, a partner at McMillan LLP.

Employee monitoring software rose in popularity while the workforce transitioned to remote and hybrid work arrangements in response to the COVID-19 pandemic. According to the job-search website Zippia, global demand for these tools soared by 65 percent between 2019 and 2022. Now, close to two-thirds of employers use them.

As remote-working arrangements blur the line between work and home, there are “interesting and complex implications” for employee monitoring, says Pennington, who practises privacy, data protection, and employment law in Toronto. Canadian privacy regulators have noted the “substantial expansion” in these tools' use and technological sophistication and will continue to scrutinize their use. She says that regulators have advised workplaces to be transparent in their workplace monitoring policies and practices.

Pennington will appear at Canadian Lawyer’s upcoming Employment Law Masterclass, giving a presentation on “Employee Monitoring: Employees’ Rights and Employers’ Obligations.” Canadian Lawyer will host Employment Law in 2024: Accommodations, family status, and more on Feb. 15.

The Ontario government’s 2022 Working for Workers Act included a requirement that employers inform employees if and how they are monitoring them. Employers with 25 or more employees must have a written electronic monitoring policy.

“Depending on the locations of its employees and the industry in which it operates, an organization may be subject to multiple pieces of legislation concerning employee privacy,” says Pennington.

In Alberta, British Columbia, and Quebec, provincially regulated workplaces must follow the province’s private sector privacy legislation. Federally regulated employers must comply with the Personal Information Protection and Electronic Documents Act and guidance from the Office of the Privacy Commissioner of Canada. Employers in unionized workplaces will be subject to the collective agreement and must follow the caselaw from arbitrators on the reasonableness of employee monitoring.

She adds that there are applicable common law and statutory privacy torts. For example, employees could allege intrusion upon seclusion if the employer’s monitoring “intentionally or recklessly” intrudes upon their private affairs in a way that would be “highly offensive to a reasonable person,” she says.

“Employee monitoring must generally be limited to purposes that are specific, targeted and appropriate in the circumstances,” says Pennington. “The collection and use of employees’ personal information in connection with monitoring should be limited to only what is necessary for the stated purpose, and the least privacy invasive measure in the circumstances should be used.”

She says this “contextual, fact-specific analysis,” which considers applicable privacy laws, should also consider the privacy risks of remote work. When monitoring an employee working remotely, there is a risk of collecting the personal information of others living in the employee’s home or working near the employee in a public place. The employer must also ensure it is not capturing more sensitive information about the employee and their home than would be available if they were working in the office.

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