Electronic Monitoring: Employers Are Catching Sneaky Employees!
How Has Remote Work Increased the Use of Monitoring Technology?
The rise of remote work has led to a corresponding increase in the use of “monitoring” technology by employers to track employee activity during work hours, which has in turn led to cases of employees using devices to “trick” these tracking systems. One example is the recent termination of more than a dozen Wells Fargo remote-work employees in the United States on the grounds that they engaged in simulation of keyboard activity to create the impression of work. Examples of this simulation include the use of commercially available “mouse jigglers” that simulate random mouse movements, meant to fool monitoring software that equates such movements with work performance.
What Does Canadian Law Say About Employee Activity Monitoring?
Canadian courts have previously upheld the right of employers to monitor the use of company equipment during work hours, though the Federal Court established a four-part test to assess the reasonableness of this surveillance against the impact on the employee’s right to privacy: the monitoring must be necessary to meet a specific need; it must be likely to be effective in meeting that need; the loss of employee privacy must be proportional to the benefit gained; and there must be no alternate and less-invasive way to meet the same objective.
Since 2022, the Ontario government has required employers with more than 25 employees to have a written policy on electronic monitoring of the workplace and equipment, including what monitoring is in place and for what purpose.
How can Whitten and Lublin Help?
For employers, the consideration must about balancing that invasion against the needs of the business, and the extent to which such surveillance is effective at providing accurate information about employee performance.
For employees, such monitoring can be an invasion of privacy, but attempting to deceive the monitoring can constitute misconduct and be grounds for discipline, including dismissal.
If you need to know about your rights in regard to workplace monitoring as an employee or employer, or you are dealing with a situation involving workplace monitoring, Whitten & Lublin is here to assist you. Contact us online or by phone at (416) 640 2667.
Author – Aaron Zaltzman