Monitoring Remote Employeesteam
For employees who have shifted to remote work during the pandemic, the transition has not always been smooth. Problems range form additional family obligations, an unsuitable work environment, to technological problems. As a result, some employers remain uneasy about having their teams working outside of the physical workplace. This has led to an uptick in inquiries about monitoring remote employees, and how to do so lawfully.
Below are some of the most common questions we receive.
Is it illegal for an employer to institute monitoring systems to monitor remote employees?
Generally, there are no laws the prevent an employer from imposing monitoring systems for their teleworking employees in Ontario. Ontario statutes such as the Employment Standards Act and the Occupational Health and Safety Act do next examine an employee’s privacy rights.
Therefore, the main legislation that governs privacy in Ontario is the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). PIPEDA also has limited use as it specifically applies to private-sector organizations across Canada that collect, use, or disclose personal information in the course of commercial activity. It also applies to employees of federally regulated employers.
Remember that in a unionized environment, a worker may have more control over monitoring and privacy. In contrast, non-unionized workplaces may introduce policies that, if reasonable, a worker has limited ability to refuse.
Section 3 of PIPEDA broadly states that it requires organizations to balance information it uses and collects with an individual’s privacy. But what does this practically mean?
What do common law cases say about privacy in the workplace?
Further guidance on privacy in the workplace comes from previously decided legal cases, also known as “common law”.
Previous cases have recognized torts such as the “invasion of privacy”. For example, the Supreme Court of Canada has explored the level of privacy an employee can reasonably expect as it relates to their personal information stored on an employer-issued computer. The Ontario Court of Appeal has recognized the tort Intrusion upon seclusion, whereby an individual can bring a legal claim against another who unlawfully accesses their personal information. Such cases mainly provide general guidance to the situation facing many workplaces during the pandemic.
Nowadays, numerous employee-monitoring methods exist that range in the level of digital surveillance they offer. For example, an employer may be able to view and track an employee through:
- General information on logging in and active screen time;
- Data on length and number of phone calls, meetings, emails etc.;
- consistent Webcam monitoring or intermittent photos of employees;
- Keyboard and mouse tracking;
- Physical GPS location;
- Screen shots of the employee’s screen,
- among others.
The use of such systems when monitoring remote employees has not been extensively addressed in case law yet so the principles from previous cases are used as a basis.
My employer had cameras in the workplace, so they said I have to turn on my webcam while working from home. Is it the same?
Many employers have installed cameras in the workplace without running afoul of PIPEDA. For example, where there may be legitimate concerns surrounding theft and vandalism.
There are 4 factors that are used in determining the appropriateness of installing video cameras in the workplace are:
- Is the video camera demonstrably necessary to meet a specific need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-intrusive way of achieving the same goal?
However, there are additional considerations when it comes to privacy issues, such as where the camera is facing, who is being recorded, retention and use of the recordings, and whether any of the areas the cameras are installed are ones where an employee has a reasonable expectation of privacy (say, the bathroom).
Where an employer seeks to have teleworking employees keep their webcams on while in their own homes, there are novel and nuanced issues at play. One such issue is that the distinctions between personal information and personal spaces with a reasonable expectation of privacy is not clear.
Given the additional concerns that arise when videomonitoring employees working from their own home, employers should be mindful of novel considerations before deciding if video monitoring is the most practical and reasonable option to achieve their goals.
What are the pros and cons of video monitoring employees?
Before deciding whether to ask employees to turn on their webcams throughout the workday, an employer should explore their own reason for this request.
It is not uncommon for employers to be concerned about worker productivity. However, there are many less-invasive methods that employers can utilize to monitor productivity of remote employees. For example, scheduled check-ins, regular performance reviews, time management software, tracking targets achievement, data of amounts of calls/emails made, etc. In most circumstances, such methods should allow an employer to keep track of their team’s work, while also not having employees feel that the employer is overstepping.
Employers may have several other reasons for wanting to impose monitoring of remote employees beyond worker productivity. Some employers want to ensure that their remote employers are complying with the workplace policies such as confidentiality. Employers may also want to use monitoring to better meet their legal obligations, such as correctly recording work hours to meet employment standards.
The Impact of Video Monitoring on the Employment Relationship
Where an employer determines that video monitoring is reasonable and necessary, the next step is making sure employees are fully informed. Although there are limited circumstances where an employer can collect information without an employee’s consent, it is best practice to be transparent and clear prior to imposing new monitoring methods. Failing to do so could create legal liability for an employer.
It is advisable to develop a written workplace policy, and provide employees with an opportunity to provide their input.
Remember that if the monitoring substantially changes the employment agreement, then the employer should also be providing the employee with consideration in return for this change.
Other factors to consider before imposing video-monitoring include the impact on workers and workplace culture. No employer wants their good faith decisions to be interpreted by their staff as an intrusive violation.
Intrusive monitoring methods may foster mistrust and negatively impact the work culture. In extreme cases, monitoring may foster competitiveness and harm the unity of the workplace, resulting in employees leaving the workplace permanently.
At the end of the day, the employer-employee relationship is just that – a relationship. Employers and employees alike should keep this in mind as they navigate teleworking, monitoring, and other emerging issues in the modern workplace.
If you are an employer looking to implement a monitoring system for your remote employees, or an employee who believes your privacy has been breached, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
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