Employers have to balance pros and cons of surveillance
In a "post-COVID" world, more workplaces have moved to hybrid remote/in-person work environments, where employees' personal and work lives have become functionally blurred. The adoption of more flexible work arrangements has posed a challenge to employers seeking to monitor employee productivity and electronic device usage.
While electronic monitoring of employees has undergone some legislative change - such as recent amendments to Ontario's Employment Standards Act, 2000, for example - concerns about employee privacy rights are on the rise. If improperly managed, the blending of work and personal technologies can leave employee data vulnerable to exposure. Further, the use of invasive surveillance methods, when not required for legitimate business purposes, can foment employee distrust and reduce staff retention.
Electronic monitoring of employees in Ontario
In 2022, the Ontario Employment Standards Act, 2000, was amended, requiring employers with 25 employees or more to have a written policy governing the electronic monitoring of employees. These policies must advise whether the employer is electronically monitoring its employees and describe how and when that monitoring occurs. It also must set out how the information gathered through the electronic monitoring will be used.
Electronic monitoring has become commonplace in many workplaces. For example, an employer may have GPS tracking in an employee's work vehicle, may monitor intraoffice chat systems, video meetings, and other communications, or log what websites the employee accesses while at work.
The requirement for written policies encourages transparency in workplaces that monitor employees electronically. However, these legislative amendments did not create any new privacy rights for employees, nor did they place any restrictions on an employer's ability to monitor employees, including their communications and location.
Employee monitoring mainly for productivity concerns
While many employees initially reported increased productivity with the introduction of remote and hybrid work models, experts have noticed a persistent downward trend in productivity over time. At the end of 2022, CNBC reported that worker productivity was falling at the fastest rate in four decades.
With the rise of remote and hybrid work arrangements since the outset of the COVID-19 pandemic, employee monitoring has become increasingly commonplace in workplaces across Canada. In its 2021 report on Workplace Surveillance and Remote Work, the Cybersecure Policy Exchange cited worker productivity as a significant motivation behind implementing employee monitoring systems, as well as risk and liability reduction and the protection of employer confidentiality.
To that end, many Canadian employers have increased surveillance efforts and cite monitoring as helpful in uncovering issues such as time theft and absenteeism during remote work periods.
Employee reactions to workplace surveillance
The Cybersecure Policy Exchange identified several factors that impact employees' perceptions and reactions to workplace surveillance, with the following conclusions:
- Employees who perceive a greater level of surveillance in the workplace harbour more negative attitudes towards those monitoring systems.
- Employees who feel they lack control over the type of information monitored and gathered will have increased feelings of unfairness towards work procedures and decreased levels of trust and security in the employee-employer relationship.
- When employees are unable to see a clear or legitimate work purpose for monitoring systems, they are more likely to view that surveillance negatively.
- Workers who negatively view surveillance systems are less likely to comply with them.
- Power imbalances in the employee-employer relationship may prevent workers from expressing concerns about surveillance and monitoring systems out of fear of retaliation or loss of employment.
Monitored employees may be more likely to break rules
In a 2022 study published by the Harvard Business Review, researchers found that monitored employees were more likely to break workplace rules - including taking unapproved breaks, disregarding instructions, and stealing office equipment - than non-monitored workers. The researchers concluded that:
"… [E]mployers cannot rely on carrots and sticks alone. In these cases, employers must also depend on employees' internal sense of morality – and our studies showed that monitoring employees causes them to subconsciously feel that they are less responsible for their own conduct, thus making them more likely to act immorally."
Risks to employee privacy and personal data posed by employer surveillance
In many remote and hybrid workplaces, employees spend a significant amount of time working in their residences and/or using personal technologies (such as a computer or cell phone not issued by their employer) to perform their work duties. The Cybersecure Policy Exchange points out that the resultant blurring of employees' work and personal lives makes workers' private sensitive information vulnerable to exposure while using personal devices and network connections.
The potential for the "over-gathering" or misuse of employee data through monitoring and surveillance further erodes employee trust, damages the employee-employer relationship, and increases the risk of staff turnover.
Monitoring should be minimally invasive
It is undeniable that employers have legitimate business concerns in surveilling employee productivity and guarding against the potential misuse of electronic devices, particularly in hybrid workplaces. However, monitoring software and procedures should be minimally invasive to employees' privacy rights and must prevent the exposure or misuse of their personal data and private information.
In its literature on employee monitoring and its impact on employee privacy, the Privacy Commissioner of Canada cautions:
"It is important that any employee monitoring be limited to purposes that are specific, targeted and appropriate in the circumstances. Monitoring measures should take into consideration an assessment of the privacy risks and any mitigating measures, including limiting collection to only that which is necessary for the stated purpose, and ensuring that the least privacy invasive measure in the circumstances is used."
Balance required between business interests, productivity concerns and employee privacy
With the rise in the adoption of hybrid work models by Canadian employers, employee surveillance and monitoring will continue to be a contentious topic for the foreseeable future. As workers adjust to the flexibility and freedom of these new working arrangements, employers will understandably have concerns regarding productivity, time theft, protecting confidential information, and the potential for misuse of technology and electronic communications.
However, as legitimate as these concerns may be, employers should take good-faith measures to retain employees and foster a healthy employee-employer relationship. In Ontario, while the newly-amended Employment Standards Act represents a good first step towards transparency in employee monitoring, employers are well-advised to consider it the bare minimum. Ensuring employees understand the legitimate work purposes behind surveillance and demonstrating that the most minimally-invasive methods are being used helps foster employee trust, improve worker motivation, and increase workplace satisfaction.
Paulette Haynes is the founder and managing officer of Haynes Law Firm, a Toronto-based employment law boutique.
