By Jared Lindzon* – October 2022
With the rise of remote and hybrid work, many Canadian employers have adopted software that allows them to track their employees in various ways – and there are few legal and legislative guardrails on how the technology can be used.
Employers can use monitoring software to track the location of their staff, record their keystrokes, take screenshots of their devices — even take pictures using the device’s camera without their employees’ consent. Only four provinces require employers to disclose when and how staff are being tracked, but none require employee consent.
According to a study conducted earlier this year by software marketplace vendor Capterra, 35 per cent of Canadian employees work for a company that uses at least one monitoring tool that they know of. Another 18 per cent weren’t sure if their employer was tracking them.
For comparison, Capterra found that 23 per cent of employees in France, and 22 per cent of those in Germany work for companies that utilize such software. A similar study conducted in 2021 found that the same was true of 21 per cent of American employees.
“With the pandemic and everyone working from home, it makes sense that companies would take that step; to have the oversight that they were used to having in a traditional workplace,” explains Tessa Anaya, a content analyst at Capterra who authored the study.
Of those Canadians that said they are being tracked, 81 per cent said the data pertained to employee attendance, such as sick days, attendance and idle time. Fifty-seven per cent said the software tracked time management, such as the amount of time spent on individual tasks and projects; 53 per cent had their workload tracked, including their goals and KPIs, 32 per cent were being monitored for computer activity, including web browsing, and 23 per cent said their employer was tracking digital communication like emails, chats and video conferences.
Canadian employees are divided on how they feel about being tracked. While the majority say using such tools would not affect how they work or impact workplace culture, 23 per cent said it added stress and made work feel more “hostile.”
“We asked if they were anxious about job security based on what employers could see from their surveillance, and only 16 per cent said they felt anxious about that,” says Ms. Anaya. “As far as feeling pressured to work longer hours, or not taking breaks, or working overtime, 34 per cent did feel that was a concern.”
Though most are using these tools responsibly, the potential for abuse was significant enough to inspire Ontario’s Minister of Labour, Immigration, Training and Skills Development, Monte McNaughton, to draft legislation that specifically addressed employee tracking.
“We have seen in other jurisdictions where workers who are working from home are having a screenshot photographed every 10 minutes without their knowledge; we heard from workers that were working from home that they were being recorded, or having devices tracked,” he says. “I really wanted to bring transparency around this issue.”
Minister McNaughton — who crafted the “Right to Disconnect” legislation that went into effect this year and banned the use of non-compete clauses in the province — recently introduced Bill 88, the Working for Workers Act, which goes into effect on Oct. 11. The bill is the first of its kind in Canada. It will make it illegal for employers to use employee-tracking software without their staff’s knowledge.
“When employees go for job interviews, they can say ‘what’s your electronic monitoring policy?’ and ‘what’s your Right to Disconnect policy?’ and that empowers workers,” he says. Minister McNaughton adds that such policies are intended to keep pace with a rapidly changing employment landscape and that he envisions additional legislation in the future. “This is the first step, but we’re not done yet.”
Bill 88 makes Ontario the first and only province with legislation that specifically addresses employee monitoring software; however Alberta, Quebec and B.C. already have applicable privacy laws on the books, according to Ontario-based employment lawyer Stuart Rudner.
“They all come down to the same thing, which is that you have to advise the employee that you’re monitoring them and provide some detail of how, but you aren’t required to have consent,” he says. “You’re allowed to do it; you just have to ensure the employee knows you’re doing it [in those four provinces].”
In those jurisdictions, organizations must disclose if they use tracking software. Still, according to Mr. Rudner, employers nationwide can use the data to inform decisions regarding promotions, discipline and termination.
Since the pandemic, he’s fielded several inquiries from employers about the legality of employee tracking software, especially among larger organizations. The practice has become so widespread that it even spurned a new kind of software product called a “mouse jiggler,” designed to trick employee-tracking software into reporting computer activity when the user is away from their desk.
“From an employment law point of view, I would encourage employees not to use that kind of software because frankly, if they’re ever caught, that would be grounds for discipline and in some cases grounds for dismissal,” Mr. Rudner says. “It’s clearly an act of dishonesty, and dishonesty will warrant discipline.”
Jared Lindzon is a freelance journalist and public speaker based in Toronto.
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