Employers must be careful when it comes to electronic monitoring of workers: Roper Greyell lawyer

Along with the rise of COVID-19, there has been an increasing trend of employers monitoring employee productivity through various tools, from counting keystrokes to figuring out if an employee’s eyes are on their computer screen or looking at certain things.

While the legality and regulatory scope of this type of monitoring can vary from jurisdiction to jurisdiction in Canada, Vancouver-based workplace privacy lawyer Keri Bennett of Roper Greyell LLP says employers should take care in how they use these tools, and under what circumstances and notice they should give their employees about this practice.

“Canada is a patchwork of legislation on this issue,” she says, noting that, in principle, employers should notify employees in advance. Employers should communicate to their employees “the purpose of the collection of this information,” and feel comfortable that what is collected is “reasonable for the circumstances.”

“It’s very hard to make generalized responses to the issues, because the needs of one industry or a certain business can vary from another,” says Bennett. She points out that recording customer calls is standard practice in some sectors, such as customer service call centres for banks or other businesses. Video monitoring in prisons might also be a situation where surveillance is essential.

Bennett will be a speaker at Canadian Lawyer’s Employment Law Masterclass West on November 1.

Bennett acknowledges that there is more concern these days about to what extent employers are installing monitoring technology to see what employees are doing from a productivity standpoint, perhaps to deal with hybrid workplaces and more people working from home. “The question of whether or not that sort of technology is necessary is going to depend on the job.”

In Ontario, for example, on February 28, the provincial government introduced the Working for Workers Act, 2022, which includes requiring employers to inform their employees if and how their employer is monitoring employees. The bill took effect on April 11.

Under the new guidance, employers with 25 or more employees as of January 1 must have a written policy on electronic monitoring of employees by October 11. Beginning in 2023 and each year after, employers with 25 or more employees on January 1 of any year must have a written policy before March 1 of that year.

Privacy concerns should also be considered even when it comes to security. A 2015 case taken to British Columbia’s privacy commissioner illustrates that even when it comes to security, not just productivity, employers must achieve a delicate balance between protecting secure networks and complying with privacy laws. 

The technology used captured screenshots of computer activity at 30-second intervals. It also documented keystroke patterns and copied emails sent and received, along with logged websites, chats, and instant messages. Even the mayor of the district was under this surveillance. The district indicated that the information collected by the software would only be made accessible on the occurrence of a “security event” and, even then, only to two people in the IT department.

While the commissioner recognized that public agencies are responsible for protecting against internal and external threats, “employees do not check their privacy rights at the office door.” She added, “there is a right to privacy in the workplace, which has been upheld by Canadian courts and must be respected by public bodies as they consider what security controls are necessary to protect the information in government networks.”

Another hot topic these days is the increasing trend of employers monitoring employee productivity through various tools, from counting keystrokes to figuring out if an employee’s eyes are on their computer screen or looking at certain things.

In Ontario, there is new legislation regarding electronic monitoring tools. On February 28, the province introduced the Working for Workers Act, 2022, which includes requiring employers to inform their employees if and how their employer is monitoring employees. The bill took effect on April 11.

Under the new guidance, employers with 25 or more employees as of January 1 must have a written policy on electronic monitoring of employees by October 11. Beginning in 2023 and each year after, employers with 25 or more employees on January 1 of any year must have a written policy before March 1 of that year.

Bennett says she hopes those attending the masterclass will come away “with a better and more detailed understanding of the specific legislative requirements in each jurisdiction, about what constitutes adequate notice and reasonableness, and what the appropriate management of personal information should look like.”