Have you heard of workplaces asking employees to be on a 9 to 5 video call with their managers while working from home? While that sounds wrong, is it illegal? In brief, the answer is that while reasonable employee monitoring is allowed, substantial changes to the employment contract are invalid if the employer doesn’t provide something new for the change, such as an additional payment.
In this article, we will answer the most pressing privacy questions employees have about surveillance in the era of COVID-19. Employees in non-unionized workplaces have limited ability to refuse reasonable surveillance practices instituted by the employers, however, it is very important to assess what is reasonable and what is not.
How common is surveillance software in Canadian workplaces?
It seems that now more than ever there are more ways for employers to keep tabs on their employees. Although it is common for employers to use monitoring software (like TeamViewer or Time Doctor), it is often only to measure employee productivity as opposed to intrusive monitoring software. Some ways employers monitor employee activity are to track the number of projects and actions done, calls made, and emails sent out. More recently, due to the COVID-19 shutdowns, employers are using further measures such as webcam monitoring and keyboard tracking software.
What laws govern privacy in the workplace in Canada?
Each jurisdiction in Canada has a unique statutory privacy regime. Statutory privacy rules regarding employment in the private sector exist in only a few jurisdictions. Where legislation does not expressly address employee privacy, judge-made law fills in the gap. Of particular importance to employers are emerging common law torts for the invasion of privacy. A tort is generally an infringement of a civil right that leads to a liability.
Currently, there is no legislation that governs private sector employee privacy rights in Ontario. By contrast, employees of federally regulated employers are protected under the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), that governs how personal information may be collected, used and disclosed.
Judge-Made Law on Privacy in Ontario
Ontario has recognized the invasion of privacy tort at common law. This tort allows an individual to bring an action for damages against a person who unlawfully accesses personal information. This common law tort was first recognized in Ontario in a decision from the Court of Appeal of Ontario, Jones v Tsige, and it is called “intrusion upon seclusion”. A successful claim requires the plaintiff to demonstrate that:
- the defendant intentionally accessed private information;
- the information was about the private affairs or concerns of the plaintiff; and
- the information was accessed in a way that would be highly offensive to a reasonable person, causing distress, humiliation or anguish.
Such highly offensive intrusions might include accessing information about health, finances, sexual practices and orientation and private correspondence.
In Ontario, the potential damages for this tort have, to date, had an upper limit of $50,000. However, some class actions have been commenced on these grounds and make the potential for total damage awards very high.
Can the employer collect employee information without consent?
Courts, privacy commissioners and arbitrators have developed different tests for determining the extent to which an employer may collect employee personal information without consent. Generally speaking, the factors considered are:
Demonstration of need;
Proportionality of the collection of personal information to the need for collecting the information;
Transparency with respect to the employer’s policies regarding the collection of the information;
Consistent use of the information in relation to the legitimate purpose of collection;
Security of the information in relation to expectations of privacy.
What are the limits to monitoring employees, or when has an employer crossed the line?
If an employer, without telling an employee starts collecting personal information or monitoring calls without telling the employee this might be illegal and could create legal issues. Employers should notify customers and employees about monitoring and the extent of such monitoring if it goes beyond anonymized data on productivity or could result in damages or even criminal charges.
What kind of process has to take place between the employee and employer before this type of monitoring begins?
Employees should be told about any monitoring that could potentially lead to personal information being disclosed. Otherwise, this could create a liability for the company. If the monitoring substantially changes the employment contract, then the employer should also provide the employee with consideration in return for this change.
Can the employer monitor the employee’s personal devices used for work?
Employers should not as a best practice be actively monitoring personal devices, if an employer wants to see everything that happens on the device then they should be providing the computer or phone.
What recourse does an employee have if they don’t want to have any of these monitoring software programs on their computers?
Employees who don’t want to change how they are working to implement a new monitoring software are not required by law to do so. However, an employer could choose to lay them off or terminate them by paying out reasonable notice (3-6 weeks per year usually, minimum 3 months) if they don’t want to use the new systems. Employees should try to work with their employers, and employers should remember that they also don’t have a right to force substantial changes to employees.
On May 14, 2020, Employment Lawyer Andrew Monkhouse spoke to CBC News about employee privacy during COVID-19. Watch the video here: Companies monitoring work-from-home productivity during COVID-19 [3.31 min].
Monkhouse Law is an employment law firm and we help employees deal with their workplace legal challenges. If you are faced with a legal challenge, call us for a FREE 30 minute phone consultation at 416-907-9249 or submit a callback request.