With remote work becoming the norm, more employers have implemented digital tracking tools and surveillance software solutions like Hubstaff and Time Doctor to monitor employee activities, engagement and productivity.

And while keeping tabs on employee website use and keystroke activity may seem harmless at first, the recent surge in workplace surveillance and digital supervision has caused a controversial debate within the world of work.

Our team has been inundated with questions about the ethics and legality of employee surveillance.

“What are the rules of remote employee surveillance?”

“Are remote surveillance tools too invasive? Are they even legal?”

“I’ve heard that it’s legal to make secret recordings of conversations. Is that true?”

“How far is too far? How does surveillance impact morale?” 

To answer these critical questions, we turned to our in-house Privacy and Information Governance professionals, Joan Dunlop and Rick Klumpenhouwer. Here’s what they had to say.

Q: What are the rules of remote employee surveillance?

Employee information that deals with the recruitment and management of specific employees – what is included in a typical employee file – is protected as personal information under both private and public sector privacy legislation in Canada. Generally, an employer may only collect, use and disclose personal employee information for the purposes of “establishing, managing, or terminating an employment relationship” with an individual. The individual’s consent is not required, but an employer must ensure that the employees know what information about them the employer is collecting and using and why

Surveillance recordings of employees at work by a video, audio or computer (e.g. keystroke logging) are considered collections of personal information by the employer and therefore need to follow privacy rule that it should only be for the legitimate purposes of employee management.

Deploying surveillance applications and equipment and collecting surveillance recordings according to the rules, is just the first obligation of employers. They also need to make sure that the recordings, once they are made, are used and disclosed only for the same allowable purposes, or for inconsistent purposes authorized by privacy legislation. In addition, because this is personal information, the employer is obligated to keep these recording confidential through adequate security protections.

Q: Are remote surveillance tools too invasive? Are they even legal?

Regardless of the intended reason, the employee may have for using them, surveillance or tracking devices are information “vacuum cleaners” that capture an awful lot of personal information. They put on record the person’s location in time and great details about what they’re doing and how there are working. Often, these devices capture non-work and sometimes very sensitive personal information, not only of the employee but many others who come into range of the devices.

Through regulators’ ruling and court decisions, we have a clearer idea about how employers are supposed to use surveillance recording in their workspaces. A four-part test is used by decision-makers to determine whether an employer has acted reasonably by using video surveillance to collect personal information:

  1. Is the video surveillance demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefits gained?
  4. Is there a less privacy-intrusive way of achieving the same result?

Using these criteria, we can say, for instance, that using surveillance tools to monitor device or network access or locations to protect people or property is generally considered okay. This may be considered necessary, especially if no one is regularly working at your main office or if you need to protect company equipment used at home by an employee. However, using remote trackers to record randomly and continuously the movements and activities of employees in their at-home workspaces for “performance management” purposes is not okay. In addition, in any of these cases, the employer needs to post notices with employees and others who enter the field of vision exactly what activities or areas are under surveillance and what the footage will be used for.

However, employers could use surveillance recordings of employees, even secretly and without notice, to support a workplace investigation of specific employees for the purpose of collecting evidence, say, of theft of equipment or that an employee is not putting in the hours they are required to. As with any collection of personal information for investigative purposes, there first needs to be a reasonable expectation that the surveillance will be effective – that there is good cause to suspect the individual employee(s) being put under surveillance are doing something wrong.

Surveillance records can only be used consistently with the purposes they were collected, with some very limited exceptions. This means that keeping and using a tracking system set up to protect company equipment cannot be then used to, say, keep track of employee attendance or location, unless, again, the purposes are a specific workplace investigation. Also, security or investigative surveillance recordings only need to be kept for a very short period of time if no security event has been detected or occurred.

Q: I’ve heard that it’s legal to make secret recordings of conversations. Is that true?

This often-cited “rule” is frequently called the “one party consent” provision. It’s a reference to s. 184 of the Criminal Code that says that, although it is a criminal offence to secretly record conversations between others, it is not a criminal offence for someone to secretly record a conversation with someone else if one party consents – which would be you.

Sure, this isn’t a criminal offence, but it may still be in violation of a whole host of common or statutory laws and employer policies. Employers, or for that matter employees, who secretly record the conversations of their employees, supervisors or colleagues without an authorized employment management purpose, are not in compliance with privacy laws. Besides exposing the organization to regulatory censure, in most cases, it would be grounds for dismissal or civil action.

Q: Are there guidelines employers should consider before using remote tracking tools?

Here are some basic steps an employer should follow before they start deploying and using remote surveillance to track their employees:

  • The employer has given employees notice of the surveillance, unless the circumstances come within the narrow scope of exceptions to the notice requirements contained in PIPA.
  • There is evidence that less intrusive alternatives to video surveillance were attempted and failed or were carefully considered and reasonably rejected.
  • Efforts have been made to minimize the level of intrusion into an employee’s privacy, such as:
    • Using periodic instead of continuous surveillance;
    • Limiting the use and viewing range of cameras to the extent possible;
    • Ensuring cameras are pointed away from higher privacy areas like lunchrooms;
    • Not viewing surveillance tapes unless there is an incident to justify it; and
    • Ensuring that any information obtained through video surveillance is safeguarded and that access is limited.
  • The employer has a policy in place, ensuring:
    • Legislative requirements are met relating to use, disclosure, and access to information captured on video; and
    • Employees are aware of their rights of access and who to contact about any questions.
  • The employer has periodically evaluated the need for continuing video surveillance.

Q: How does surveillance impact morale?

When it comes down to it, unwarranted, excessive, and continuous surveillance tracking of employee location and activities is not just illegal; it’s a good way to create a toxic work environment that craters employee morale and ultimately damages productivity.

There has always been an “ickiness” element to the surveillance of humans in any setting. Why? On a basic level, many people under surveillance experience a loss of autonomy and personal space. They can often feel devalued and degraded, and their trust of, and commitment to, their company or organization starts to erode. These kinds of employee and employment relationships don’t lead to success for the business.

So, in a nutshell, remote surveillance is a tool, not a solution to possible employee issues, and it can often actually create new problems. Don’t implement remote surveillance of your employees until you have carefully considered both the human and legal costs.

To avoid violating your employees’ privacy rights, talk to an experienced privacy professional before introducing surveillance measures in the workplace. Cenera can help you decide if implementing a fair and legal employee surveillance system is right for you. To find out more, give us a call now at (403) 290-0466 or book a consultation

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