Employee Monitoring and What Remote Workers Should Know
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The onset of the pandemic caused the work of many to shift to the online space. Although many workplaces are preparing to return to the office, others will remain either fully remote or will be transitioning into a hybrid model.

A concern of many employers when all or a portion of their workforce is clocking in from home is just how much work their employees are doing. To ensure employees are staying on task, some workplaces may use software or other means to monitor employee activity. Recently, Ontario became the first province to pass a law that requires provincially regulated employers to establish an employee policy about disconnecting from work. Embedded in this legislation is a new requirement for employers who monitor their employees who work remotely.

Has Remote Work had a Positive or Negative Effect on Productivity?

Nowadays, it is estimated that up to a quarter of hours spent at work could be performed remotely after the pandemic ends. But with remote work happening in a person’s home, often on personal laptops or computers, a debate has been brewing concerning how work life and private life intersect.

Studies are overall inconclusive on the level of productivity for employees working from home compared to those in the office. Some studies have shown that the longer employees work remotely, their productivity decreases. It is notable, however, that not all drops in productivity are tied to employees being irresponsible when unsupervised. Some employees must take on parenting or caregiver responsibilities when at home. Technology can pose another challenge to productivity that is not directly tied to an employee’s work ethic.

Outside of the office setting, employers have been more interested in opportunities to monitor their employees’ productivity. Employers may consider using tools to monitor keystrokes, geolocation, and eye movements and the like to ensure employees are working on their tasks. Although such technologies are becoming more prevalent in the workforce, bringing it to workers at home has overarching implications when much of work from home is done through the use of personal devices and networks.

Ontario Will Require Its Employers to Create Electronic Monitoring Policies

We previously wrote about the Working for Workers Act, 2022, which was enacted on April 11, 2022. The legislation adds a requirement for provincially regulated employers to the Ontario Employment Standards Act, 2000. Employers must create and provide a copy of a policy on disconnecting from the workplace for all employees. In the Employment Standards Act, “disconnecting from work” means “not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work.”

Additionally, this legislation will also require employers with 25 or more employees to “create and publish an electronic monitoring policy that essentially describes how the electronic monitoring will take place.” Employers need to provide this policy to new, existing, and temporary employees.

Ontario Employers Are Not Being Granted New Rights to Monitor

This move makes Ontario the first province to pass a law of this variety. In addition to establishing transparency measures on employee monitoring, the Bill also establishes a minimum wage for gig workers, like couriers or rideshare workers.

This does not change the law as it relates to what employers can do. Generally, employers have the right to monitor company devices at any time and in any way the employer so chooses. Employers who do this should strive to be transparent and inform their employees. Similarly, employers can monitor social media platforms to ensure that content aligns with company values. Regardless of whether employers choose to exercise their right to monitor, they must also disclose that monitoring is occurring in addition to the purpose and monitoring of the collection of information.

The Federal Government is Considering Similar Legislation

The federal government is planning to introduce similar requirements as Ontario for federally regulated employers. In February, the federal Minister of Labour received a report from the Right to Disconnect Advisory Committee. The report included several points, spanning from establishing a positive work-life balance to the need to protect workers’ privacy and security.

An area of disagreement within the report concerned the creation of a statutory right to disconnect. While union and NGO representatives recommended a legislative requirement to establish a right to disconnect, employer representatives were in opposition. Instead, they recommended that the federal government encourage parties to develop policies to ensure proper work-life balance for employees.

Contact the Employment Lawyers at Baker & Company in Toronto for Assistance with Workplace Policies

The knowledgeable team of employment and corporate lawyers at Baker & Company will continue to monitor when the Working for Workers Act, 2022 comes into force so you can stay informed of your rights and entitlements. We can assist your company in proactively responding to today’s business environment, whether you are a small or large size organization and tailor responsive and strategic legal solutions to meet your company’s individual needs. To speak with a lawyer about employment policies or any other employment law issue, contact us online or by phone at 416-777-0100. 

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