Howard Levitt and Muneeza Sheikh: Studies show productivity decreases the longer employees work remotely; monitoring is viewed by many employers as increasingly necessary
As employment lawyers, we have consistently told our employer clients that they have every right to monitor company devices in almost any manner they see fit. This includes computers, both in and outside of the office, interoffice chat groups (i-messaging or the like), laptops, cellphones, work vehicles, work calendars and office email. The only caveat is that they should be transparent and inform their employees.
The reason is simple: historically it has been reasonable for employers to take the necessary steps to ensure that their business operations are running efficiently. In doing so, employers can monitor the above devices and platforms to ensure that their employees are being truthful about their work and whereabouts, maintaining productivity and remaining generally compliant with company policies. Employees may not like that but it is the law. There are limited privacy protections in this area.
We also tell our clients that they are free to monitor Twitter, Facebook, Instagram and similar social media platforms to confirm that posted content aligns with company values and in some cases to investigate misconduct allegations. While employers don’t have the right to demand access to private social media accounts, if they are able to obtain information from these platforms — sometimes from another employee — they can certainly act on it to test productivity, to verify what their employees are telling them about their whereabouts and to investigate allegations of wrongdoing. Other more risk-averse lawyers may have informed their clients that they cannot monitor social media. Such advice is bunk.
It would appear that the legality around this monitoring may see some substantial changes in the coming months.
Bill 88 (not yet passed) aims to bring “written policy on electronic monitoring” to the Ontario Employment Standards Act, 2000 (the ESA). This new legislation will require all employers with 25 or more employees to create and publish an electronic monitoring policy that essentially describes how the electric monitoring will take place — i.e. outlining which devices are being monitored and how the employer intends to use the information it obtains.
Furthermore, the obligation is on the employer to provide the policy to new and existing employees, and (interestingly) even temporary employees.
While the bill itself does not define “electronic monitoring,” it is fair to assume that it will apply to the list as set out above.
The timing is largely related in our view to the pandemic, which saw many businesses implement remote work environments. Employee monitoring in that context relates mostly to measuring productivity and, relatedly, to ensure that employees are doing their jobs when they are supposed to or claim to be.
Interestingly, while the policy superficially seems like a cumbersome invasion on an employer’s right to run its business, it does not limit in any way the level or degree of monitoring. It simply, like much of the Conservatives’ recent legislation, places an obligation on employers to disclose their right to monitor.
In order to prepare for the new law, employers should do the following:
1. Define the purposes for which you will monitor (investigations, audits, productivity, etc.);
2. Ensure that employees are aware that the policy applies to both general monitoring and monitoring that might be more isolated (i.e. in investigating misconduct);
3. Do not over-disclose: while employees now have the right to know that you are monitoring devices and platforms, you don’t have to give them specific details on how the monitoring itself is taking place — i.e. you need not identify the specific software programs;
4. Ensure that you have consistent messaging ready and prepared — since your employees will undoubtedly ask questions on why they are being monitored; and
5. Update the policy if and when you make any changes to monitoring practices. If your policy falls through the cracks and does not remain updated you will not be permitted to later rely on it.
With many employers extending working from home beyond what was originally contemplated and studies in Canada showing that productivity decreases the longer employees work remotely, monitoring is being viewed by many employers as increasingly necessary.
Nothing will enrage a workforce like surreptitious surveillance.
This legislation requires transparency, which is precisely how employers should conduct themselves in any event.
Recently, a client of ours had an employee who had taken multiple sick leaves over a one-year period, and then requested a six-week caregiver leave to allegedly care for a sick parent. Foolishly, instead of at least pretending to care for the fictitious sick parent, the employee decided to post Facebook pictures of boating adventures in various parts of the Caribbean taken over that period. The pictures were sent to my client by another employee, and the employee in question was terminated for cause.