Can Monitoring Employee Activity At Home Be Treated As A Violation Of Privacy?

As the COVID-19 continues, we are observing amplified use and dependence on techniques that help in keeping an eye on employee activity to keep track of the output of employees working from home. Workplace supervision must consider a balance between protecting the lawful interests of the employer in scrutinizing productivity and the right to privacy of the employee. So, when does checking employee activity on a company’s work laptop at home turns out to be a violation of privacy?

The answer is it depends.

While the legal protections of employee confidentiality rights are varied and unclear in Canada to some extent, we do know that employees are by and large entitled to a reasonable probability of confidentiality, which will be decided on a case-by-case basis. This leaves open the capability of employers for keeping an eye on employee activity for reasonable intentions, which may include checking for productivity, training, and other concerns associated with employment.

Within the office space, it is commonly accepted that employees should look forward to be screened by reasonable means, such as telephone use, email, and tracking computers. However, what will be considered ‘reasonable means’ turns out to be more intricate when employees are working from home and using company property, as they will have a greater expectation of privacy within the limits of their own home.

The Supreme Court has decided that while there is an expectation of privacy for work laptops in connection with personal emails and information, that expectation is reduced compared to ordinary privacy rights within the home.

Deciding what is reasonable under the conditions may entail considerations like whether the supervising data is being stored, the nature of the data being gathered, and whether the employee has given permission to be supervised. Employees should expect that their employers will be making efforts to keep an eye on their work while using company devices at home, with reasonable means, and for reasonable purposes.

Reasonable Expectation to Privacy

It may be shocking to employers and employees alike that there is a void in the law around employee privacy rights which fails to describe precise limits for employers supervising employee activity on work computers. In Ontario, privacy is governed by a variety of sources, including collective agreements, employment contracts, common law, and legislation. Even though there is no particular legislation that claims to protect private sector employee privacy rights, the federal PIPEDA (Personal Information Protection and Electronic Documents Act), is usually utilized as a framework by employers when mulling over employee supervision.

Employees are entitled to a reasonable expectation of privacy, which will be decided on a case-by-case basis. This leaves open the likelihood for employers to check employees for reasonable purposes, which normally takes account of productivity, training, issues associated with employment and efficiency of an employee.

As the COVID-19 continues, and telework grows to be more normalized, a lot of employers may push the envelope for what can be considered a ‘reasonable’ expectation of confidentiality. Where employees and employers can work collectively is by encouraging open communication and permission around these supervising strategies to maintain trust and effective workplaces, wherever that workplace may be.

To better understand your privacy rights and explore the practicability of a claim during these unprecedented times, we encourage employees to look for legal advice. In the same way, we also encourage employers to speak with a lawyer to understand their rights and obligations as they make use of telework monitoring or any other employment issues.

We at Scher Law are happy to provide insight and advice into your particular conditions. If you are in search of employment lawyers and would like to explore more information regarding what Scher Law can do for you, feel free to get in touch with us at (416) 515-9686 today!

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