Last week, Ontario legislation went into effect which will require most employers in that province to have a written policy on the electronic monitoring of employees—and they’ll have 30 days to provide that policy to staff. This new law is the first of its kind in Canada, and has garnered significant attention as a purported effort to increase workplace transparency. There is little doubt the legislation was significantly driven by the increased instances of ‘work-from-home’ arrangements as a result of the pandemic.
British Columbia has no equivalent legal requirements at this time but that doesn’t mean BC employers should not consider the issue of e-monitoring measures in their own workplace (whether they currently use them or not), and be aware of the potential risks and rewards connected to such measures.
Electronic monitoring—or e-monitoring—refers to any type of employee monitoring that is carried out electronically. This could involve the installation and use of software specifically-designed to obtain information such as employee work time data, browsing history, or GPS location.
To many, the use of e-monitoring may be viewed in an unfavourable light as it may be considered overly intrusive and/or showing a lack of trust in employees. However, there are legitimate reasons many employers might consider such measures. It is important to remember that employers generally have certain key rights with respect to their employees, including:
BC employers may in some cases wish to use e-monitoring to protect these and other rights. While BC—along with Quebec and Alberta—has privacy laws which often restrict a company’s collection and use of personal information, which places roadblocks to unfettered e-monitoring usage, it is still possible for BC employers to make use of e-monitoring to manage their workforce, particularly as hybrid working grows in the post-COVID world. For employers wishing to pursue such an option, however, they should keep a number of things in mind.
Top Three Considerations For Employers Around E-Monitoring:
Although BC employers are not required by law to have a policy on e-monitoring, it may be wise to do so, especially if the company is considering implementing—or increasing—the use of e-monitoring. A robust e-monitoring policy should:
The review of benefits/risks is of particular note, because of the potential morale loss among employees or possible brand damage resulting from the decision to implement e-monitoring measures. If a policy is ultimately created, it should also be connected to other key employment policies, such as those relating to use of company property, discipline, or code of employee conduct.
E-monitoring software is a marvel of modern technology with a myriad of features and options, providing the employer with a wide array of data about its employees. While this data may seem a boon to the employer, it’s important to ensure the collection and use of that data is not at odds with existing company policies or practices. Further, the employer must ensure that its actions don’t run afoul of applicable law (for example, human rights or privacy laws). Obtaining the greatest data in the world isn’t worth committing a breach of your legal obligations and facing the consequent risks. Further, it’s best not to simply rely on the software provider’s word about these topics, but rather engage to legal counsel.
An e-monitoring policy—as with any employment policy—needs to make sense for the company. E-monitoring can require a significant output of time, energy and cost (or possibly all three). Employers need to assess if the potential benefits outweigh the resources likely required.
Is there a significant issue or opportunity in the workplace that e-monitoring could eliminate or ameliorate? Or will e-monitoring become a “make work” project with little benefit? Will it increase employee efficiency? Or will it only result in unhappy employees and further “gaming” of the system? These are some of the key questions that should inform the decision to implement e-monitoring in a workplace.
While e-monitoring options are one way for employers to navigate remote and hybrid working arrangements, they’re not the only path available. A more general remote work policy—which may or may not contain language on e-monitoring—can be an effective method to manage employees while they’re away from the office. The specific inclusions in such a policy will vary depending on the company culture and its specific needs.
Similarly, entering into a remote work agreement with employees who wish to pursue a fully or hybrid work model can achieve many of the same goals and be tailored to the specific employee position. For example, the employer could take into account whether an employee is in a ‘deliverables’-based versus ‘available-for-work’-based role, and thereby determine the appropriateness of using e-monitoring methods for that particular employee.
In any event, e-monitoring is an employment issue that will likely only grow in significance over time. Employers will be well advised to consider their position on that issue – and of course seek appropriate legal counsel before taking any dramatic steps.