As the COVID-19 pandemic continues, we are seeing increased use and reliance on techniques that help in monitoring employee activity to keep track of the productivity of employees working from home. Workplace monitoring must consider a balance between protecting the employer’s legitimate interests in monitoring productivity and the employee’s right to privacy. So, when does monitoring employee activity on a company’s work laptop at home become a breach of privacy? The answer is it depends.

While the legal protections of employee privacy rights are varied and somewhat ambiguous in Canada, we do know that employees are generally entitled to a reasonable expectation of privacy, which will be determined on a case-by-case basis. This leaves open the ability of employers for monitoring employee activity for reasonable purposes, which may include monitoring for productivity, training, and other employment-related concerns.

Within the office space, it is commonly accepted that employees should expect to be monitored by reasonable means, such as tracking computers, email, and telephone use. However, what will be considered ‘reasonable means’ becomes more complicated when employees are working from home and using company property, as they will have a greater expectation of privacy within the confines of their own home. The Supreme Court has determined that while there is an expectation of privacy for work laptops with regards to personal emails and information, that expectation is diminished compared to ordinary privacy rights within the home (see R. v. Cole, [2012] S.C.J. No. 53).

Determining what is reasonable under the circumstances may involve considerations like whether the monitoring data is being stored, the nature of the data being collected, and whether the employee has consented to be monitored. Employees should expect that their employers will be making efforts to monitor their work while using company devices at home, within reasonable means, and for reasonable purposes.

To better understand your privacy rights and explore the viability of a claim during these unprecedented times, we encourage employees to seek legal advice. Equally, we encourage employers to speak with a lawyer to understand their rights and obligations as they make use of telework monitoring or any other employment concerns. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

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