Before the digital era, it was much easier to see what employees were up to at practically all times. The ‘boss’ either sat in a prime spot overlooking a factory floor bellowing orders, or had managers throughout the workplace who monitored employees’ every move, and reported back on any disciplinary infractions. Yet as workplaces began to modernize and offices changed shape, employee monitoring took a different form. Employers either needed to place their trust in their team, or found electronic monitoring solutions such as security cameras.
Cameras located throughout a workplace can be controversial depending on the working environment, and one which can easily make employees suspicious. Yet today monitoring extends well beyond conspicuous wall-mounted cameras. Technology has advanced to the point where monitoring can be completely inconspicuous. Webcam monitoring, browser surveillance, and keystroke tracking can tell employers exactly what their employees are doing at all times without the employees even knowing.
Except not anymore. A new change to Ontario’s Employment Standards Act means that most employees in Ontario no longer have to worry about being monitored without their consent.
What does the law say?
The new law is part of the provincial government’s much-publicized Working For Workers Act, which began making news last Fall with the announcement of several key changes to employment law. This included the end of non-competition clauses in employment contracts, and the newfound ‘right to disconnect,’ which will allow employees not to communicate with their employer or conduct business outside of working hours. The law officially came into force on April 11, 2022.
Aside from the components mentioned above, by October 11, 2022, employers with 25 or more employees will be required to have an electronic monitoring policy in place. Chief among the requirements, the policy must include “a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer.” All employees will be required to be given a copy of the policy, either 30 days from when it comes into existence, or 30 days from when they begin working for the employer.
The law also clarifies that “nothing…affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees.” For employers, this line may be something of a saving grace. While some employers may have gone to extremes when it came to monitoring, most initiatives are intended to enforce disciplinary measures, curb time theft, or in some cases even curb theft of materials. If employers see this sort of behaviour on camera, they still have the power to act.
What will this mean for the workplace?
For employees, the new law may come as a relief. Employers who had once been overzealous in their monitoring may have had no concerns about doing so without notice. They may have believed that if they effectively owned the employee’s time, and the employee was working off of company-owned equipment, then they were fully within their rights to track an employee’s every move online.
Yet this sort of extensive monitoring often backfired on employers. It eroded the trust that’s so important in healthy working relationships. As much as employers need to be able to trust their employees, employees also need to trust that employers have their best interests at heart. Part of that is an employer’s legal requirement to keep employees safe at work, but part of it is also trusting employees to get their work done efficiently and effectively, without having to scrutinize their every move.
For employees who were concerned about their employers’ overzealous monitoring, those concerns have only been exacerbated by the pandemic. Employees across the country felt pressure to complete tasks and assignments on deadline, all while working in uncomfortable surroundings and dealing with the added pressures of the pandemic. While most employers were understanding, some expected an unreasonable level of decorum from employees working from home, such as expecting them to be ‘camera ready’ at all hours of the day. Even if employers were not doing anything nefarious, employees were still uncomfortable about the idea of potentially being monitored remotely without their knowledge.
The decision helps give employees that sense of security that their employer will not be monitoring their every move without their knowledge. This does not mean that employees will suddenly start running wild, or behaving recklessly. It effectively works to correct some of the power imbalance that naturally exists in the employer-employee relationship.
Next steps for employers
Now that the law has passed, employers will be required to start assembling these policies before next Fall. Policies do not need to be long, or convoluted, but employers should include a few elements, some out of necessity and others simply for clarity:
- List examples of what sort of monitoring will take place. Is there software that exists primarily for data security, but does not actively monitor communications? Is there a firewall which monitors anything downloaded onto the system? Are you utilizing a keylogging software that monitors employees’ every move? The law requires you to inform employees of what monitoring will be taking place.
- Explain the purpose of your monitoring. This is also required by the law, but employees deserve a sound explanation of your practices. Are you monitoring traffic simply for data and cyber security? How will you be collecting data, and what will you be doing with the data that you’ve collected?
- Keep your other technology policies up to date. A workplace surveillance policy should not be your only technology policy. Your team should also have policies on technology usage, social media usage, etc. These policies should already be up-to-date to accommodate employees working remotely, from home, etc., but this is another great excuse to review them and ensure that they meet your needs.
- Train employees on proper technology usage. If security is your main concern, phishing scams and cyberattacks have become increasingly prevalent, and are always taking on new forms. Make sure that employees know what to look for, and how to assess a threat before it attacks client data or takes your business offline.
- Lastly, hire employees that you can trust. If you have the right employees in the right seats (metaphorically speaking) then you should not need to monitor employees beyond what is absolutely necessary. Hire carefully, and find team members that you can trust to get the job done.
When your workplace needs new policies, or your existing ones are ready for review, we can help. Policies are some of the best protection for your business, and that ounce of prevention can be worth a small fortune when it comes to cure. Talk to us today to learn more about how we can help.