Remote Work – Privacy vs. Monitoring in the Workplaceachkarlaw-admin
As cities enter the latest stages of reopening, some companies are returning to work in the physical workspace. However, some employees are continuing to work from home. Employers typically have a harder time managing and monitoring their employees when employees work remotely, where actions and tasks are not easily visible or traceable.
As a result, employers may resort to other ways of monitoring their employees, whether it be through social media, applications, or daily trackers that can be verified. However, striking a balance between an employee’s privacy rights and an employer’s right to manage is crucial when monitoring employees.
Reasons Why an Employer May Monitor Employees
- To ensure productivity;
- To protect from liability and cyber-crimes;
- To ensure work is being completed in a timely manner; and
- To protect their intellectual property – client list, domain names, etc.
Both employers and employees have privacy concerns stemming from employees working remotely.
Employers want to continue monitoring their employees as they do in the physical workplace, to ensure productivity and efficiency. At the same time, employers may also feel the need to increase monitoring, as employees may be exposed to more confidential information than usual, which can increase the risk of confidentiality and intellectual property breaches. Employers should remind their employees of confidentiality obligations and have the necessary workplace policies to address such obligations.
Employees on the other hand, will have privacy concerns, particularly when the lines of work and home are blurred. Feelings of unease surrounding privacy increase the more any type of monitoring goes beyond task-related check-ins and move closer to continued watching and scrutinizing of all activities.
Privacy in Case Law
In R v Morelli, 2010 SCC 8 and R v Cole, 2012 SCC 53, the Supreme Court of Canada held that employees have a right to a reasonable expectation of privacy. There are times when the employer provides its employees with laptops to work on. In such cases, that employee has a right to a reasonable expectation of privacy within usage of the laptop, and notice of which areas may be monitored.
In Jones v Tsige, 2012 ONCA 32, the Ontario Court of Appeal held that employees have a right to bring a civil action for damages for the invasion of personal privacy (known as “intrusion upon seclusion”) against their employer.
Ways to Monitor Employees
Depending on which method the employer uses to track their employees’ work, employees may feel that their privacy is being breached.
For example, although some employers may be tempted to watch their employees through their webcams, this would likely invade the employees’ right to privacy, as the employees’ homes may be exposed and the continued monitoring would likely be considered unreasonable.
Group chat applications can help demonstrate when an employee has “checked into” work, and how long the employee has remained logged in. Such applications are better alternatives to continued observation through a webcam.
Employers can also manage employees remote through the following less-invasive means:
- Employers can set a timeframe for employees to work, which can be same as their workplace hours. Any accommodation considerations should be considered similarly;
- Managers can reach out to employees and can discuss any issues regarding tasks, timelines, and managing. These discussions may engage the employee to initiate their own follow-ups, and task-related updates.
- Employers can have conference calls with all of their employees to interact with them. A day can be fixed, preferably once a month.
- Employees can be asked to track and docket hours they worked, as well as the time spent on each task.
Any monitoring of employees should aim to properly manage employees in the least intrusive manner possible, particularly as it is important for employees feel trusted and supported.
Employees typically work better and are more productive in environments where they feel they are respected and valued. Having policies that strike the balance between privacy and monitoring, as well as consider different workplace contexts, can go a long way in fostering understanding and expectations that place both employers and employees on the same page.
If you are employer seeking to draft or update your policies or have questions about monitoring, or an employee seeking to clarify your rights, our team of workplace lawyers can help you navigate your matter.