While Canadian privacy laws allow employers to track employees in a remote or hybrid working arrangement, this surveillance must be related to their job.
“Employers have a proper and reasonable right to supervise their employees and ensure they’re doing their jobs and doing them safely,” says David Young, principal at David Young Law. “The flip side is that employers can’t surveil or track employees in their personal lives without consent.”
Stephen Gillman, a workplace law partner at Levitt LLP, notes employee tracking is nothing new. “Professional truck drivers have been tracked since the technology existed, while call centre workers and bank tellers have each keystroke monitored. The only reason we’re talking about this is because we’re not yet fully used to the idea of so many people working from home.”
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Still, only four provinces — British Columbia, Alberta, Ontario and Quebec — have employee privacy laws. “It’s a patchwork across the country and the privacy commissioner has bemoaned this,” Young says, noting Ontario’s legislation is particularly “half-hearted.
“Two years ago, the province amended its Employment Standards Act, but all it did was stipulate that employers had to disclose what and when they were [tracking employees] and how they were doing it. The legislation gives no rights to employees and provides no details about what information has to be disclosed.”
Just how far employers can go is dependent on context, says Gillman. “In a general way, nothing is barred so long as it’s reasonable, rational and connected to the job. For example, if you have a customer service representative working from home, it’s perfectly permissible to monitor breaks and keystrokes, but you can’t install cameras throughout the house. And one bright line is that tracking is not permissible once the employee is off the clock.”
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He adds reasonableness is measured on a gradient. “It’s important to remember that monitoring a home office is not all that different from a lawyer [who’s] monitoring assistants who are sitting outside their workplace office all day.”
But the decision to monitor or not isn’t all about legalities. “From my perspective, employees who want to avoid being prime candidates for layoffs should show up in the office regularly,” Gillman says.
From an employer’s viewpoint, it comes down to workplace culture and morale. “If you’re monitoring too much, it’s akin to micromanaging, [which] could upset employees who feel you’re looking over their shoulder and heighten the risk of stress leaves and attrition,” he adds. “Ultimately, employers have to balance these risks with the utility of monitoring as a good tool for training, tracking productivity and for deciding on discipline and bonuses.”
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