Big Boss is watching

George Orwell’s “1984” was published nearly three-quarters of a century ago, but some of its elements reverberate today – particularly the idea of Big Brother watching us.

While technology allows potential surveillance by entities like governments and corporations, for many people Big Brother may be their employer. But how much can employers legally keep an eye on their employees?

A recent survey found that more than one-third of Canadian employees say that their company uses at least one type of monitoring software on its employees. However, only 37 per cent of those were trained on it or signed consent agreements and 16 per cent of those who didn’t were not informed of the monitoring at all. Four in 10 either felt insecure about it or only accepted it out of pressure.

This raises the question of what is the line that employers shouldn’t cross when monitoring employees?

There is legislation from the federal and some provincial governments prohibiting the collection, use, or disclosure of personal employee information where it would be unreasonable to do so and the Federal Court set out a four-part test for reasonableness back in 2004. Generally, employers have to use the least intrusive methods to meet the objectives of the surveillance.

Limited expectation of privacy

Certain settings don’t have an expectation of privacy, including workplaces to a certain extent, which means employers can carry out some form of monitoring – as long as it’s reasonable. Activity on work computers or phone lines would have a limited expectation of privacy, but employers have to be careful if a certain level of personal use on these are allowed, and generally they would have to notify employees that they’re being monitored.

The Ontario provincial government, for example, is upping the ante for employers with new legislation requiring Ontario employers to inform their employees if they are being monitored electronically and how. The new legislation also requires employers with 25 or more workers to have a written electronic monitoring policy in place by Jan. 1, 2023, regardless of whether employees are in the workplace, in the field, or working from home.

Overzealous video surveillance

Recently, two employees at a Montreal retail store won a psychological harassment claim after their employer installed video cameras in the workplace due to concerns over employees using personal cellphones at work. The employees felt the employer was constantly spying on them and they received frequent phone calls from the manager as he viewed the surveillance feed in real time – calls which the employees felt were made in a disrespectful and unprofessional tone. A tribunal found there was excessive surveillance that led to psychological harassment.

Going father back to 2004, a Canadian internet service provider was found to have crossed the line when it installed workplace video cameras connected to the web so the workplace could be viewed live at any time. Although the purpose of the cameras was to improve security and manage productivity, the federal assistant privacy commissioner found that the constant surveillance “forces the employee to call into question every potential action, every potential comment no matter how benign.”

Outside the workplace

Another way employee activity can be monitored is through the electronic tracking of company vehicles when employees are out on the road, and this may be less risky for employers. An Ontario arbitrator found that it was reasonable for a company to track the location of its vehicles because the company was responsible and liable for its vehicles at all times and its “no personal use” policy was clearly communicated to employees. Any threat to employee privacy from personal use was the employee’s choice, said the arbitrator.

In an era where many people are now working from home, monitoring employee activity on their work computers brings additional concerns. There should still be a limited expectation of privacy on work computers, but employees working from home are more likely to use them for personal tasks and there is a risk that some element of an employee’s personal home environment could be captured on audio or video. Clearly informing employees what is being monitored and encouraging them to obscure their backgrounds on video calls will help reduce that risk and liability.

For employees, Big Brother may be watching, but he has his legal limits.