Toronto employment lawyer with Bill Carroll talks employee monitoring in Ontario

Interview Summary

Employers in Ontario in accordance with Bill 88 will now have to have an electronic monitoring policy in place if they have over 25 employees. What will these policies dictate in regard to employee privacy rights? Does this legislation force employers to be more transparent with their staff?

Mackenzie Irwin, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP joins Bill Carroll on Newstalk 580 CFRA to answer these questions and more on employee rights.

Interview Notes

• Employers are legally able to track employees working remotely: To an extent, it is perfectly legal for employers to implement tracking technology and software to monitor employees while working remotely or in the office. Employers have to have a legitimate purpose to track employees however and must be careful with the information that they do collect.
• Employees using personal devices for work being tracked: As it stands currently, it does not matter if an employee is using their own personal devices for work purposes. Employers are still able to track or monitor employee behaviour during work hours and while they are performing work responsibilities.
• Offering employees the choice to be tracked: This legislation will finally ensure more transparency in the workplace and for employees working remotely regarding what their employer is tracking and whether or not tracking is taking place at all. Throughout the pandemic, many employers implemented employee monitoring systems without consent or knowledge from their employees.
• Importance of employee productivity and practical work policies: Individual companies have to decide how they wish to manage their employee behaviour and whether or not more flexibility is permitted as long as employee productivity remains efficient. Many employers are recalling employees back to the office instead of choosing an ongoing remote work arrangement in order to better track employee efficiency.
• Employees refusing to be tracked by their employer: Employers that are not monitoring that are not breaching privacy rights are entitled to do so. Employees who refuse to be monitored or due to behaviour that has been discovered due to tracking are still very likely to be owed severance if terminated.
• Limits to employer tracking: This legislation is a first step that ensures employers have to notify employees if they are tracking behaviour and how they are doing so. Certain modes of tracking such as camera monitoring or recording calls are very likely breaches of personal privacy rights and can lead to constructive dismissal.