I’m Off the Clock – Can My Employer Monitor My Personal Device?

I’m Off the Clock – Can My Employer Monitor My Personal Device?

Can my employer monitor me outside of work hours?

In an increasingly hybrid world, many employees take their technology home with them at the end of the workday. As a result, electronic monitoring has become a hot topic in the workplace.

What must an employer’s electronic monitoring policy include?

In Ontario, employers are allowed to electronically monitor employees. Under the Ontario Employment Standards Act, 2000 (the “ESA”), employers with at least 25 employees must have a written policy on electronic monitoring. The policy must provide guidance on whether or not the employer electronically monitors employees. If so, the policy must describe details of the monitoring itself, including:

  • a description of how and in what circumstances the employer may electronically monitor employees;
  • the purposes for which the information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared (the date must include the day, month and year); and
  • the date any changes were made to the policy (s. 41.1.1, ESA).

Notably, electronic monitoring rules under the ESA do not create privacy rights for employees or establish any prohibitions against employers monitoring employee’s personal devices, even after hours. Ultimately, requirements under employment legislation mandate employer transparency in regards to the monitoring, and remain inherently vague when it comes to the limitations of electronic monitoring.

The ESA also does not define “electronic monitoring.” The Ontario Ministry of Labour, Training and Skills Development has clarified that electronic monitoring includes “all forms of employee and assignment employee monitoring that is done electronically.” Some examples include:

  • use of GPS to track the movement of an employee’s delivery vehicle;
  • use of an electronic sensor to track how quickly employees scan items at a grocery store checkout;
  • tracking the websites that employees visit during working hours.

When is electronic monitoring considered excessive or inappropriate?

Monitoring must be done with a reasonable objective such as monitoring productivity and safeguarding the workplace. These objectives must be balanced with the employee’s reasonable expectation of privacy. If an employer’s monitoring goes beyond the scope of their policy this could be viewed an inappropriate or excessive, leading to potential disputes.

What can I do if I believe my privacy has been violated?

Employees who feel their privacy has been violated can file complaints with privacy commissioners, triggering investigations and potential sanctions. Beyond administrative penalties, privacy violations can also become part of broader legal claims, such as wrongful dismissal lawsuits.

If you feel your employer has failed to provide proper notice or guidance in regards to electronic monitoring, please contact Whitten & Lublin online or by phone at (416) 640 2667.

Author – Sophie Teversham

 

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