November 7, 2024 from Benefits Canada
As remote and hybrid work arrangements become increasingly common, Canadian employers face important considerations regarding employee monitoring. While surveillance in these settings is legal, it must adhere to privacy laws and be directly tied to job responsibilities.
Legal Frameworks for Monitoring
“Employers have a proper and reasonable right to supervise their employees and ensure they’re doing their jobs and doing them safely,” says David Young, principal at David Young Law. However, employers cannot surveil employees’ personal lives without consent.
Only four provinces—British Columbia, Alberta, Ontario, and Quebec—have employee privacy laws, creating a fragmented legal landscape. Ontario’s legislation, for instance, mandates disclosure of monitoring practices but provides no rights to employees or clarity on what must be disclosed.
“Two years ago, the province amended its Employment Standards Act, but all it did was stipulate that employers had to disclose what and when they were [tracking employees] and how they were doing it,” Young notes.
Reasonable and Job-Related Monitoring
According to Stephen Gillman, a workplace law partner at Levitt LLP, employee tracking is not new. However, the rise in remote work has sparked fresh discussions. “If you have a customer service representative working from home, it’s perfectly permissible to monitor breaks and keystrokes, but you can’t install cameras throughout the house,” Gillman explains.
One key guideline is that monitoring must stop when the employee is off the clock. “In a general way, nothing is barred so long as it’s reasonable, rational, and connected to the job,” he adds.
Striking the Right Balance
Excessive monitoring can impact workplace morale. Overly invasive practices might feel like micromanagement to employees, leading to stress, dissatisfaction, or even attrition. “If you’re monitoring too much, it’s akin to micromanaging, [which] could upset employees who feel you’re looking over their shoulder,” Gillman warns.
Employers should weigh these risks against the potential benefits of monitoring, such as improved training, productivity tracking, and informed decisions regarding discipline and bonuses.
Beyond legalities, workplace culture plays a significant role. Gillman advises employees seeking job security to maintain regular office presence, while employers should foster trust and transparency in monitoring practices.
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