Reasonableness, privacy and monitoring policy laws, and practicality place bounds on how it is used
Transparency is essential for employers who want to increase their use of monitoring technology in the workplace, says Andrea York, a partner with Blake Cassels & Graydon LLP.
“You need to let people who work for you know what you’re doing when it comes to monitoring and why,” says York, one of the featured speakers at Canadian Lawyer’s Employment Law Masterclass on Apr. 25.
The other word for employers to keep in mind when thinking about monitoring employees is “reasonable,” says York, who has advised clients on what to consider if they want to monitor the actions of employees, especially when these days, so many are working from home.
“It would be unreasonable, for example, to have monitoring technology that follows you to the laundry room if you’re working from home,” she says.
Changes in Ontario requiring employers to have monitoring policy
Changes to Ontario’s Employment Standards Act in April 2022 require certain employers to adopt a workplace “electronic monitoring policy.” It applies to provincially regulated workplaces that, as of January of any year, employ 25 or more employees. For the employers it applies to, the policy must be in place by the Mar. 1 of the same year.
(Ontario-regulated employers with 25 or more employees as of Jan. 1, 2022, were required to have the policy in place by Oct. 11, 2022, and provide it to employees by Nov. 10, 2022.)
The electronic monitoring policy must inform how, when, and why employees are being monitored electronically. It must also describe under what circumstances the employer may electronically monitor employees and the purposes for which the employer may use the information obtained through electronic monitoring.
The scope of electronic monitoring, York says, could include using GPS to track employee movements and using electronic sensors to track how quickly employees work. That includes keystrokes, log-in times, and internet browsing.
The policy is not limited to employer-owned devices or monitoring that occurs while employees are at the workplace. If the employer electronically monitors employees in any way, including on their personal devices, at home or after working hours, details of such monitoring must be captured in the policy.
As well, amendments to the Ontario employment standards laws specifically state that the requirement for an electronic monitoring policy does limit an employer’s ability to use information obtained through electronic monitoring of its employees. The policy requirement also does not create new privacy rights for employees beyond the necessity of informing employees of the nature and extent of electronic monitoring.
However, unreasonable electronic monitoring of employees may still trigger liabilities, York says. Her advice to employers is that they be as open as possible about what monitoring they do and stay within the boundaries of reasonableness.
When employers might want to use electronic monitoring tools
And for the most part, York says most employers don’t want to go down the rabbit hole of monitoring just to spy on employees.
“In my experience, that level of monitoring typically doesn’t occur,” York says. “That is because it would be so time-consuming to monitor what everyone is doing on their computers, at the office or remotely.”
A more likely scenario, she adds, is that an employer may want to flag activities such as downloading a document that should not be downloaded. Other specific reasons and situations include using electronic monitoring to check on a worker who appears unproductive or to secure the company from cyber hackers.
Still, she says, the technology does exist to know whether someone is at their computer (even something as simple as the red, yellow, or green light on Microsoft Teams), if they are typing on their keyboard, or if the laptop geolocator indicates an employee is in the Dominican Republic when they are supposed to be at the office.
“But it usually only gets put to use in cases where an employee’s productivity is in question.”