With approximately 40% of Canadians currently working from home due to the pandemic, employers are increasingly looking for ways to supervise and monitor productivity and attendance. While employers can monitor and collect information on their employees as part of their general right to manage their business, employees still have a reasonable expectation of privacy while at work. Electronic monitoring, in particular, raises a number of questions and considerations for employers.
For example, CBC News recently reported that an Alberta employer dismissed an employee for, among other things, refusing to download an app to her personal cellphone that would allow her employer to track her hours, as well as when she entered and exited the workplace. The employee refused to download the app, voicing privacy concerns.
So, what are employers’ rights? And what are the limits?
Do employees in Ontario have a right to privacy?
Unlike Alberta, Ontario workers employed by provincially regulated employers do not have a legislated right to privacy within the employment relationship, except for laws regarding the collection, use and disclosure of personal health information.
Nevertheless, an employer may be restricted, by either the employment contract or the collective agreement, from electronically monitoring employees. Moreover, unnecessarily intrusive or invasive employee monitoring may attract legal sanction and civil liability under the common law.
The courts have recognized the tort of “intrusion upon seclusion”, which could give rise to a civil claim by an employee for breach of privacy. This tort requires (1) that the employer’s conduct be intentional/reckless; (2) an invasion of the employee’s private affairs or concerns; and (3) the invasion of privacy is objectively, “highly offensive” and could cause distress, humiliation or anguish.
With privacy issues generally, the court may also consider: (1) whether the device being monitored is the employee’s or employer’s property; (2) whether there are policies and practices in place in the workplace that diminish the employee’s reasonable expectation of privacy; (3) how close the information is to the biological core of the employee; and (4) the employee’s subjective expectation of privacy.
Best practices for electronic employee monitoring
Although not legislatively required, employers should follow these best practices if considering the implementation of electronic monitoring:
- Determine whether the potential electronic monitoring is reasonable under the circumstances, considering whether:
- it is necessary to meet a specific need;
- it is likely to be effective in meeting the need;
- the employee’s loss of privacy is proportional to the benefit gained; and
- whether a less intrusive means would be effective in meeting the need.
For example, if an employer’s purpose is to monitor an employee’s hours of work, then tracking their log in and log out time on their computer may be considered reasonable; whereas, turning on an employee’s webcam and recording them working whenever they are logged on to their computer may be unreasonable and unnecessary for meeting the stated purpose.
- Inform employees about what activities will be monitored and why.
- Implement and bring to the affected employee’s attention, preferably at the time of hire, a clear policy setting out the reason for the policy, what activities will be monitored and how, and the employee’s reasonable expectation of privacy.
- Consider obtaining written consent from the employee.
Other considerations for electronic employee monitoring
Duty to inquire
Employers should also be aware that if they collect data on employee productivity, or lack thereof, it may trigger the duty to inquire. Where an employer is aware, or reasonably ought to be aware, that there may be a relationship between an employee’s decreased productivity or performance and either disability (including mental health and addiction disorders), family status or another protected ground under the Ontario Human Rights Code, the employer has a legal duty to inquire into whether such a relationship exists and determine what accommodation, if any, can be made.
Employers should remember that if they are collecting information about employees, they are responsible for it. Employers should consider how the information will be stored, what information needs to be stored and what obligations/liability they may have in the event of a data breach. General information on data breaches can be found in my colleague, Michael Weinberger’s helpful blog post on Data Breach Awareness.
Jennifer Herpers practices with the Siskinds Labour and Employment department. If you have questions about the information contained within this article or any other employment questions, please write to jennifer.herper[email protected] or call 519.660.7830.