Written on behalf of Peter McSherry
The ability of an employer to track an employee’s online activity or even their keystrokes has been around for a few years now, but with more and more people working from home due to COVID-19, employers may be more tempted to use them to monitor employee productivity.
Is this allowed? What kind of privacy rights is an employee entitled to with respect to their computer? Does it matter if the computer is owned by the employer? Below, we will look at what an employer is and isn’t entitled to monitor in Ontario, and what rights employees have in this regard.
Work-Based Social Applications
According to a study completed in 2012, approximately 70% of workplaces were making internal use of at least one social media/instant messaging platform, such as Slack, and that number has likely only increased since then. While it is highly unlikely an employer will expend the time and resources necessary to comb through instant message conversations, especially an employer with hundreds or thousands of employees, it is important to remember that they could.
While it may be tempting to use an instant chat application for workplace gossip, it is best to follow the golden rule: if you wouldn’t share it with your boss voluntarily, it’s probably best saved for a face-to-face conversation.
Work-Provided Computers, Phones and Tablets
It is very common for a workplace to provide their employees who work in an office environment with a computer. With a large percentage of office employees working from home, particularly in light of COVID-19, most of those employees now have laptops they can port to and from the office, and use remotely from home. What is an employee’s expectation of privacy with respect to this equipment? While technically owned by the business, the Supreme Court of Canada did confirm in 2012 that employees still have a reasonable expectation of privacy when it comes to a device provided by an employer. The case in question related to a criminal matter in which an employee’s work computer contained images that violated the Criminal Code, however, the principle extends to employer-provided devices in general.
In that decision, the Court found that when a computer is provided to an employee to use, especially to use at home, a certain reasonable expectation of privacy is created. However, this expectation may be reduced due to internal company practices and/or workplace policies. For example, a policy stating that all information stored on the computer is owned by the company should indicate that an employee who saves personal photos on a work laptop might expect that someone at work will likely have access to those photos, especially if the computers share a common server and network. However, that same employee might expect that certain activities remain more or less private, such as internet browsing history or social media usage.
When employees work from home, there is a greater chance that the line between work and home life will be blurred. The general consensus is that it would be unrealistic for an employer to expect an employee would completely refrain from using the computer for personal reasons while carrying out work. They may be sending emails in one tab and checking their child’s basketball schedule in another.
Clear Workplace Policies Should be the Norm
An employer should always make internal policies around monitoring, privacy and the use of equipment clear in a workplace policy, that is clearly communicated to all employees. This lets employees know what to expect, and puts them on notice of any routine checks the employer plans to carry out. However, employers should also consider respecting their employees’ privacy as a default, unless an issue arises making it necessary to conduct an internal investigation.
In addition, employees should bear in mind that while they can expect some degree of privacy on work devices, they can never know with absolute certainty who is seeing their activity, and conduct themselves accordingly. It is unlikely that browsing online over lunch or checking a personal email account would ever be noticed or flagged by an employer. However, exercise caution when it comes to storing personal files on a work device or discussing sensitive or confidential matters through employer-provided applications. If an employee feels they have been subjected to an unreasonable infringement of their privacy at work, they should contact an employment lawyer for advice right away.
If you are an employee seeking legal advice in this situation, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation