While the move to remote work has made significant changes to everyday life for employees, it’s also changed how employers and managers supervise their teams. Employees may no longer be congregated in physical workspaces, or at least not to the same degree. This ultimately makes it harder for managers to drop by an employee’s desk or oversee their day-to-day work.
Employers still have plenty of opportunities for performance management. Even if employees are working remotely, they can still review work, assess productivity, and provide guidance. Yet the pandemic required employers to be more flexible when it came to things like working hours and time management. Employees working remotely often need to counterbalance work obligations with busy home lives, and even though most children are back in school, there’s always a bustling world happening besides work.
So, what sort of privacy can employees expect if they’re working remotely, or even back at the office? How will employers realistically be able to monitor their team’s work, and keep employees on track? Will employers have to keep making concessions, or can they realistically keep a keen eye on employees no matter where they are?
Employers can still keep a close eye, just as long as they are open and honest about it.
What is workplace electronic monitoring?
At one time employee monitoring might have looked like something out of an old movie, with the employer sitting above the factory floor on a high perch, carefully watching workers performance and having managers on the ground report back about fine details.
Today that monitoring is far more sophisticated, especially given the amount of business conducted online. Typical physical monitoring has now taken the form of HD security cameras, internet firewalls, access and review of email, keylogging software, and even webcam monitoring.
Why do employers use electronic monitoring?
Electronic monitoring can easily make employees nervous. Without any explanation, employees can feel as though they are being ‘spied on,’ or that they’re not being trusted to perform their work properly.
The reality is that most electronic monitoring occurs for security purposes. Tools such as firewalls, antivirus software, and even website blockers are meant to reduce the number of costly outside security threats that can leave a company vulnerable.
However, employers can also use electronic monitoring to monitor employees’ work and progress if it is necessary. If an employer has a policy restricting social media usage in the office, or even personal email usage on work computers, then they may be monitoring this conduct through a tracking software and can then use that information to penalize employees for violating the workplace policies.
What does the new law say?
On April 11, 2022, the provincial government passed Bill 88, also known as the Working for Workers Act, 2022, which was one of several major updates to employment legislation made within the past year. The new law updates Ontario’s Employment Standards Act (the “ESA”) when it comes to the requirements for electronic monitoring.
Under the ESA, employers with 25 or more employees will now need to maintain a written policy on electronic monitoring in the workplace. The policy must state how data is collected, what data is being collected, and the purpose(s) that the data will be used for. Employers who have more than 25 employees currently have until October 11 to introduce this policy into their workplaces. After 2023, an employer that has 25+ employees as of January 1 of a new year will have until March 1 to bring in an electronic monitoring policy.
Interestingly, the law does not state what an employer can and cannot do with this electronic data. For employers, that means that electronic monitoring can still be used to track performance, and employees can still be penalized if they are caught violating a workplace policy. The key difference now is that they are legally entitled to know when and how they are being monitored.
What does this new law mean for employers?
For employers, this new law first and foremost represents yet another step that employers will need to take in order to become compliant. Every time a new workplace regulation is passed (and there have been several recently, but changes are always being made), employers are responsible for staying on top of the law.
There can be significant penalties for failing to comply with new requirements. While the Ministry of Labour for example can issue penalties for failure to comply with the law, courts and tribunals can issue major punishments if an employee was placed at risk because of an employer’s non-compliance.
In this case though, employers also need to give significant thought to their other technology policies, such as social media usage, device usage, etc. Many workplaces have been too busy scrambling through the pandemic to give thought to what these policies should look like in 2022, and what sort of monitoring is required as a workplace shifts to an increased work from home model.
What does this new law mean for employees?
For employees, the new law likely creates a sigh of relief, albeit a small one. Employees across the country have been vocal about concerns as they move to working from home on a regular basis. They’ve been cautious about unknowingly being asked to appear on camera, or worried as to how their boss may be virtually looking over their shoulder.
Employers can still have policies in place, and they can still discipline employees for bad behaviour. Yet the law helps to ensure that employees have a clear understanding of how they’re being monitored and why, above and beyond their understanding of existing workplace policies. This change will likely serve to level the power imbalance between employers and employees, if only slightly.
For both employers and employees, the answer to making the new law work for the workplace is going to be legal advice.
For employers, it can be impossibly difficult to keep up with all the latest legal standards while still effectively running a business. Working with an employment lawyer means you have a partner who will keep you informed on all the latest updates to the law, and work with you to ensure that your workplace is always in compliance.
For employees, an employer who is not following these latest requirements may create serious headaches. An employment lawyer can serve as your advocate to remind employers about their obligations, or take legal actions if those obligations still are not met.
We regularly assist employers and employees throughout the Cambridge, Kitchener, and Waterloo region with a variety of workplace issues. Contact us today to set up a consultation.