What’s Allowed When It Comes To Tracking Employee Work Locations?
Published By: HR Reporter
Like many employers, PwC is figuring out its hybrid work policy now that the pandemic is well in the rearview mirror.
Recently, the company announced that it would require staff in the UK to come to the office at least three days a week as the organisation puts more emphasis on in-person working.
“Face-to-face working is hugely important to a people business like ours, and the new policy tips the balance of our working week into being located alongside clients and colleagues,” said Laura Hinton, managing partner at PwC UK
To enforce this implementation, the company will be looking at employees’ working locations, according to a CNN report.
“We will start sharing your individual working location data with you on a monthly basis from January as we do with other data such as chargeable hours,” said a PwC memo. “This will help to ensure that the new policy is being fairly and consistently applied across our business.”
The legal implications of such monitoring, particularly under Canadian law, require careful navigation, according to two employment lawyers discussing the complexities of electronic monitoring, privacy concerns, and employee rights.
‘It’s new’: Monitoring office workers
Although PwC’s new location tracking policy has sparked debate, electronic monitoring is far from a novel concept, says Stephen Gillman, partner in employment and labour law at Levitt in Toronto, pointing out that industries like trucking and logistics have been using electronic monitoring tools for years.
What’s new, however, is the application of such monitoring in white-collar workplaces, especially post-pandemic as remote and hybrid work models become more common.
“The general consensus is ‘Oh, my God, I’m now part of Big Brother in 1984’ or something. But this has been going on for years, since the technology would allow it,” he says.
“It’s nothing new, it’s not illegal, but the fact that it’s impacting more people and spreading into different sectors in the economy is really what’s making people go, ‘Jeez, is this OK?’”
Gillman also emphasized that the purpose of monitoring isn’t necessarily punitive, as it can be an effective tool to track things like productivity.
“We’re all just getting comfortable with this being part of the ‘new way we work,’” he says.
Attendance as a performance metric
Some companies, including Google, have begun tying attendance to performance reviews. This is generally permissible, says Daniel Lublin, founding partner at Whitten & Lublin in Toronto, aside from those same human rights considerations.
“Outside of that, it’s certainly acceptable for Google to make good attendance something that employees should strive for, and to discipline those who do not follow attendance requirements,” he says.
“It’s like any other rule — if an employer wants to say, ‘I need people here, I’m going to advance those people who are productive in the workplace, and I’m going to weed out those that are not,’ they could do the same with attendance, it’s totally fair game.”
Referring to the situation in Ottawa where PSAC union members have opposed return-to-office requirements, Lublin calls the protests “absolutely outrageous.”
“They have no basis, in my opinion, to do that. If an employer determines that they need the employees into the office three days a week, four days a week, or five days a week, that’s just the workplace rule. An employer can make that rule.”
Gillman pointed out that while attendance incentives are often seen in industrial sectors, such as manufacturing or logistics, their use is expanding into white-collar professions.
“Employers are trying to figure out how to have touchpoints with their employees, maintain training, quality of work product, and then, at the same time, give their employees autonomy,” he says.
Privacy implications of location tracking
As companies like PwC implement location tracking as part of their return-to-office mandates, privacy concerns could be an issue. While companies can collect location data, they must be mindful of how this information is used, according to Lublin.
For instance, employers are not allowed to sell or share employee data for commercial purposes, which would violate privacy laws in Canada.
“Employers cannot utilize data about employees’ locations and preferences for any commercial purpose, so they can’t sell that information to any third parties,” Lublin says.
Additionally, the tracking should not extend beyond work hours. If companies do not deactivate monitoring systems after hours, they could find themselves in breach of privacy laws, he says.
“Tracking an employee’s whereabouts on the weekend because the location badges don’t shut off … could lead to some issues, in the respective that has really nothing to do with the work product being provided.”
Generally, location tracking wouldn’t be permitted outside of working hours, says Gillman.
“If you’re not paying someone — that would be the simple way to put it — you don’t really have an entitlement to monitor, and it’s got to be done reasonably.”
But, for the most part, it’s permitted, he says, “as long as it has a legitimate aim and the purpose is rationally connected to the ends.”
Ontario’s electronic monitoring regulations
In Ontario, legislation requires that employers with 25 or more employees develop and communicate a written policy if they intend to monitor staff electronically.
Transparency is critical, says Lublin.
“You cannot surreptitiously monitor things like email or whereabouts or use any type of … electronic surveillance, without having a policy in place and notifying employees as to the uses or the intended use of the monitoring. So, you can’t do it … in a clandestine manner.”
While electronic monitoring is permissible under Ontario law, it must have a legitimate business purpose and not be done for arbitrary reasons, he says.
“Provided that there is a business reason, and employers generally have broad discretion to determine what that reason is … you can track employees’ whereabouts, and you can track their productivity, provided you comply with the legislation,” he noted.
Even if an employer in Ontario or the rest of Canada does not have a statutory requirement to notify employees of electronic or other forms of surveillance and monitoring, it probably is a good practice, Lublin says.
“I think you would likely offend a number of employees if they ultimately and suddenly learned that their whereabouts and use of the employers’ computers and networks were being surveilled without their knowledge.”
Fair and consistent policy enforcement
PwC has also stated that its location tracking policy will be applied “fairly and consistently” across the organization.
Consistently applying policies around work from home, the return to the office and electronic monitoring can be difficult because employees at the same workplace do different things, says Gillman.
“PwC … they have partners, they have employees of all different stripes, all different places in the hierarchy.”
But consistency is essential when it comes to enforceability, says Lublin.
“A policy that’s not consistently applied makes it virtually impossible for an employer to rely on for any disciplinary action,” he says.
“If an employer is picking and choosing when the policy applies or basically saying it applies in some circumstances and not others, it’s nearly impossible for them to discipline employees who violate the policy because the employer hasn’t treated it in a consistent manner.”
Human rights and return-to-office mandates
That said, Lublin emphasized that employers must consider accommodations under human rights legislation, such as for employees with childcare or eldercare responsibilities, in enforcing return-to-office mandates.
“There always has to be … an accommodation-first approach,” he said, pointing out that failure to consider such requests could lead to human rights violations.
“The human rights concern is really more about a return-to-work policy than it is about an electronic surveillance or GPS monitoring.”
Failure to properly accommodate employees could expose companies to legal challenges, particularly under the Canadian Human Rights Act, which requires employers to accommodate employees’ needs to the point of undue hardship.
Disciplinary actions for non-compliance
When it comes to disciplining employees for failing to meet attendance requirements, both Lublin and Gillman stressed the importance of fair and transparent processes — and context. Employers should ensure that they follow a step-by-step approach, starting with warnings and escalating only when necessary.
“Employers are supposed to take a contextual approach to disciplining employees, particularly surrounding allegations of serious misconduct,” says Lublin. “Warning letters, performance improvement plans, threats of termination — all of that are appropriate and should be items that employers should consider.”
However, in cases of “serious” insubordination or misconduct, such as an outright refusal to comply with in-office mandates, companies may have grounds for dismissal.
“If an individual has been told that they have to be at work Monday, Wednesday and Friday, and they just refuse to show up, it may be an issue of cause for dismissal,” says Lublin.
But Gillman cautioned employers to be careful when disciplining remote workers, especially if that involves requiring them to work in the office.
“You run into issues of constructive dismissal or things like that,” he says, citing the issue when an employer unilaterally changes a fundamental term of an employee’s contract, such as the location of work.
Transparency in monitoring attendance. Both Lublin and Gillman concluded that transparency is the cornerstone of any monitoring or attendance policy. Clear communication not only helps companies meet their legal obligations but also builds trust with employees.
“Your best bet is to be transparent with your employees,” says Gillman. “Don’t install a microchip in the company laptop that they use at home and just say, ‘Hey, we’re going to monitor you now,’ [without explaining] why you’re doing it.”
Despite the legal permissibility of electronic monitoring, employers should be mindful of the impact on workplace culture, he says.
“If you go too far down the rabbit hole of monitoring, and employees believe they’re being micromanaged, all of a sudden, you start tearing down workplace culture, then you have turnover, and you have people feel they’re being unfairly targeted.”