Watching the workers

Hey there, time traveller!
This article was published 22/10/2022 (1261 days ago), so information in it may no longer be current.

You know that disturbing feeling you get after doing some innocent internet searches, when you’re being haunted by pop-up windows?

Just like a Halloween trick, receiving these targeted pop-ups can be quite spooky! “They” know what you have been looking at and what you like! “They” are monitoring you. There are many questions about how this monitoring happens, as well as questions about your privacy.

Frankly, these are all good questions — and the same questions are being asked more frequently in the workplace, as the issue of employee monitoring has become a growing phenomenon.

Actually, employee monitoring has been with us for quite some time. Truckers, courier drivers and food-service delivery agents are often tracked by their GPS. Other employees are monitored for things such as attendance, time management, number of keystrokes, best time productivity, workload management and team productivity.

A recent Canadian survey showed that at least one in five employees claimed they were still unsure if they were being monitored. On the other hand, 35 per cent reported they already worked for a company that monitors employees, with 28 per cent indicating that monitoring was in place well prior to the pandemic.

The survey also identified that 65 per cent of survey respondents said monitoring did not have any impact on how they worked. At the same time, 39 per cent agreed that monitoring provides them insight into their daily operations that was beneficial to both employer and employee. Another 37 per cent of participants believed monitoring was helpful in avoiding mistakes before they escalated.

Employers use monitoring to assess employee productivity, reduce personal use of company resources, and avoid legal liability for issues such as sexual harassment or inappropriate access to pornography sites. They also want to ensure general compliance with workplace policies, identify incidents of unauthorized access and protect the use of corporate information.

Of course, monitoring includes overall network security that can arise from employees accessing unprotected websites.

The global demand for employee-monitoring devices doubled in the year 2020, while online search statistics for monitoring devices showed an increase of 1,705 per cent. Employee monitoring tools are also becoming more sophisticated; employers can now examine real-time user activity, identify security events, and monitor project and benchmark goals.

All these activities are said to provide insight rather than oversight. However, the new monitoring applications that collect data on employee blood pressure and heart rates in order to produce corporate wellness and anxiety scores might be seen as breaching personal privacy.

The Canadian scene is also heating up especially with respect to the issues related to personal privacy. Melanie Bueckert, a Manitoba lawyer and expert in electronic monitoring, suggests that privacy laws in Canada are a patchwork, in that there are different laws at the federal/provincial levels and what applies in public versus private areas. In Manitoba, the Canadian Charter of Rights and Freedoms and the public sector Freedom of Information and Protection of Privacy legislation protects government employees, but similar private-sector protective legislation is not in place. This certainly creates a challenge for employers, so they must pay particular care to consult their legal advisers prior to implementing employee monitoring.

In addition to the use of electronic computer monitoring, the issue of surveillance cameras in the workplace is another growing concern. Certainly, there are many reports of the combined use of electronic GPS tracking and surveillance cameras assisting businesses with building break-ins and the theft of property; however, one key issue with the camera surveillance tool is the danger of invading an employee’s privacy.

According to Shandra Czarnecki and Devin Wehrle of MLT Aikins law firm, it is extremely important that managers understand the various legal restrictions regarding the use of camera surveillance in the workplace. These two labour lawyers share the following takeaways from a high-profile court case regarding camera surveillance.

● Employers do not have an unfettered right to use surveillance cameras and must ensure that any system being implemented is reasonable and balances employee interest with their right to privacy.

● Employees must have reasonable justification for installing and using surveillance cameras. This could include protection of property, detecting theft or vandalism, or reviewing accidents.

● Each and every camera must serve a legitimate purpose, such as monitoring a valuable piece of equipment.

● Camera locations need to be clear.

In Bueckert’s view, there is a qualitative difference between traditional in-person surveillance and electronic surveillance. This arises because there is a difference in terms of intensity. For instance, a supervisor walking around, monitoring employees, does not and cannot provide constant or “infallible” surveillance. In other words, their personal memory can’t be accessed like a computer to retrieve information years later. In addition, Buecket raises the concern of using electronic monitoring information for secondary purposes.

Of course, the employer’s collection and use of information remains subject to any other relevant legal considerations, such as obligations under applicable privacy legislation or collective agreements.

As one might expect, the issue with any type of private sector electronic monitoring legislation is the difficulty of enforcing it. In the meantime, employers need to focus on self-regulation based on consultation with their legal expertise. This can include the development of policies that include:

● A description of how and in what circumstances employees will be monitored

● Which employee groups will be monitored

● Which personal devices outside of the workplace will be included in the monitoring

● The purpose for how any information obtained through surveillance will be used

● How complaints can be reported and investigated

● How the policy will be distributed and how education about electronic monitoring will be offered to employees

Electronic and camera surveillance is a complex area of law and I am confident new approaches will be examined and discussed and a number of proposed solutions will continue to come forward to help address this situation.

Source: One third of Canadian Employees being monitored at work — but has HR told them? Dexter Tilo, June 16, 2022, HRD; Electronic Employee Monitoring; Potential for Reform Options, Melanie R. Bueckert, Underneath the Golden Boy, nd.; Surveillance Cameras in the Workplace; What Manitoba Employers Need to Know: Devin Wehrle, Shandra Czarnecki MLT Atkins, Winnipeg, December 4, 2018.

Barbara J. Bowes, FCPHR, B.Ed, M.Ed, CCP is a human resource professional, author, radio personality, speaker, executive coach and workshop leader. She can be reached at barb@bowesleadership.com.