‘If your workforce is doing well and being productive, then I would query whether it’s necessary to be escalating your monitoring techniques’
With many employees spending the bulk of time working from home because of the pandemic, employee monitoring has been more in the spotlight, as seen with a U.K. company planning to use webcams to monitor its at-home workforce.
Canadian HR Reporter asked Ottawa lawyer Heather Cameron, partner at Norton Rose Fulbright Canada, to explain some of the salient points for employers wishing to keep track of what an employee is doing.
Q: What is the level of surveillance allowed for work-from-home situations?
A: “Generally speaking, there’s different scales of what is less intrusive to more intrusive. If you’ve got your employees connected to a VPN [virtual private network], being able to track when people log in or log out, that generally seems on the less intrusive side. Sometimes you have people who have sales teams using sales-tracking software that measures how long a call is and how long people wait in the queue before their call is answered, all of that seems less concerning.
“The other end of this scale is the technologies that allow employers to review or capture images for content: spyware; actively listening to phone calls, monitoring keystrokes. You’re collecting more information and whether it’s a morale issue or reasonable-expectation-of-privacy issue, there is a difference from an employer saying, ‘We can see when you’re online and we can see when you’re active online; when you’re working and not working,’ versus ‘We can see everything you do, we can see every website you visit, we’re listening in on phone calls.’
“If you’re using an employer computer system and the policy says, ‘This is for work purposes,’ there should be no reasonable expectation of privacy for anything that is created, store and transmitted received, accessed on our network.”
Q: Does privacy differ at home compared to the workplaces?
A: “From a common-sense standpoint, most employees would expect to have a higher expectation of privacy at home than in the workplace but that is something that can be set out or addressed with a clear policy for things like video monitoring. An employee in the office is probably not expecting to be on camera.
“A lot of employees might be surprised if they found out that their employer was watching them without their knowledge, and your policies and your consent are going to be crucial to smooth that over.
“If your workforce is doing well and being productive and you don’t have concerns about time theft or low productivity or breach of security or anything like that, then I would query whether or not it’s necessary to be escalating your monitoring techniques.”
Q: What’s allowed in using webcams, monitoring keystroke and screen activity and looking at online chats?
A: “If you’re in a unionized workplace, you’d need to look at your collective agreement and see what restrictions and limitations or rights management has under the collective agreement.
“Employers should also look at their policies and if you’re in a jurisdiction that has privacy legislation, you’re going to want to comply with that legislation. In Ontario, we don’t have private sector privacy legislation like there is in B.C., Alberta and Quebec.
Informed consent is really in some cases a cure-all: a clear policy that says ‘This is what we are going to do in plain language, this is what we’re collecting, this is how we collect it, this is why we collect it, this is what we’re going to use it for.’ And then having the employee consent to that collection would really expand what the employer can do.”
Q: Is surveilling people the best way to monitor productivity?
A: “Regular communication with a supervisor, clear deliverables, feedback, coaching, whatever your normal HR processes are going to be a more effective way to monitor productivity.
“For the most part, the questions ultimately come down to if the employee isn’t being productive is there another reason? Online monitoring might indicate that there’s a problem but it’s certainly not going to indicate the solution. The solution is you really do need to have a conversation at that point.
The use of video surveillance by employers in the workplace has been a contentious issue for decades, says one legal expert, in addressing what’s allowed by employers in Canada.