[Canada] Are employers allowed to ‘spy’ on remote workers?

Many businesses now operating remotely, leaving employers with new HR and management challenges. Concerns include time theft, reduced productivity and employee well-being.

This has led to the increased use of employee monitoring software such as Teramind, InterGuard and ActivTrak. However, Human Resources Director cautions that there are legal considerations for employers and explores the subject further. 

Business owners must be careful if they intend to use monitoring software as it may infringe on their employees’ privacy.

Employee monitoring software and its uses

The most common types of software businesses are using show data relating to their employees’ work, including their email, telephone and computer usage to measure productivity. Some employers can also track idle time, how much time workers spend on browsing and how many incoming and outgoing calls are being made. 

These types of software can also be helpful in tracking employees work hours and overtime to keep employers compliant with employment standards legislation.

Other types of software available focus on content monitoring, allowing employers to listen to and access conversations as well as monitor keystrokes. This type of monitoring is more extreme and controversial and would be much harder for the employer to justify if they were held liable for a privacy violation.

The laws on employee surveillance

Currently, there are no laws in Canada to prevent business owners from using these types of software. But employees do have the right to know about being monitored and may refuse it.

In Canada, employees have the right to an expectation of privacy under the Personal Information Protection and Electronic Documents Act (PIPEDA). British Columbia and Alberta have their own provincial legislation on privacy in addition to this, while Ontario does not. 

Employers must follow the guidelines within this legislation to minimise risk and liability relating to the privacy concerns of staff. Employees may also be entitled to an expectation of privacy based on their contracts.

Rights to privacy for workers during remote work

When it comes to remote working, rules surrounding privacy become complicated. In a traditional workplace, there is an expectation that space is shared and privacy reduced. Employers can easily monitor their employees’ productivity simply by being in the same space as them. 

When workers are at home, employers cannot monitor them in the same way and there is a greater expectation of privacy. Furthermore, the expectation of privacy increases if workers are using their personal devices for work purposes. The Supreme Court of Canada has previously held that surveillance of personal devices is one of the most intrusive invasions of privacy. (Link via original reporting)

What employers must do when implementing such technology

One of the most important factors in implementing monitoring software is obtaining employees’ consent. Employees should be made aware of what information is being collected, who will have access to it, the reason for collecting it and using it and what potential consequences might arise. 

Employers are also advised to give workers a choice of whether they consent to the collection of this information or not and to clearly explain why this might be a necessary condition of employment. Finally, employers should ensure employees understand the policy and what they are consenting to and ensure the consent is ongoing as circumstances change.

Many businesses now operating remotely, leaving employers with new HR and management challenges. Concerns include time theft, reduced productivity and employee well-being.

This has led to the increased use of employee monitoring software such as Teramind, InterGuard and ActivTrak. However, Human Resources Director cautions that there are legal considerations for employers and explores the subject further. 

Business owners must be careful if they intend to use monitoring software as it may infringe on their employees’ privacy.

Employee monitoring software and its uses

The most common types of software businesses are using show data relating to their employees’ work, including their email, telephone and computer usage to measure productivity. Some employers can also track idle time, how much time workers spend on browsing and how many incoming and outgoing calls are being made. 

These types of software can also be helpful in tracking employees work hours and overtime to keep employers compliant with employment standards legislation.

Other types of software available focus on content monitoring, allowing employers to listen to and access conversations as well as monitor keystrokes. This type of monitoring is more extreme and controversial and would be much harder for the employer to justify if they were held liable for a privacy violation.

The laws on employee surveillance

Currently, there are no laws in Canada to prevent business owners from using these types of software. But employees do have the right to know about being monitored and may refuse it.

In Canada, employees have the right to an expectation of privacy under the Personal Information Protection and Electronic Documents Act (PIPEDA). British Columbia and Alberta have their own provincial legislation on privacy in addition to this, while Ontario does not. 

Employers must follow the guidelines within this legislation to minimise risk and liability relating to the privacy concerns of staff. Employees may also be entitled to an expectation of privacy based on their contracts.

Rights to privacy for workers during remote work

When it comes to remote working, rules surrounding privacy become complicated. In a traditional workplace, there is an expectation that space is shared and privacy reduced. Employers can easily monitor their employees’ productivity simply by being in the same space as them. 

When workers are at home, employers cannot monitor them in the same way and there is a greater expectation of privacy. Furthermore, the expectation of privacy increases if workers are using their personal devices for work purposes. The Supreme Court of Canada has previously held that surveillance of personal devices is one of the most intrusive invasions of privacy. (Link via original reporting)

What employers must do when implementing such technology

One of the most important factors in implementing monitoring software is obtaining employees’ consent. Employees should be made aware of what information is being collected, who will have access to it, the reason for collecting it and using it and what potential consequences might arise. 

Employers are also advised to give workers a choice of whether they consent to the collection of this information or not and to clearly explain why this might be a necessary condition of employment. Finally, employers should ensure employees understand the policy and what they are consenting to and ensure the consent is ongoing as circumstances change.