Remote and hybrid work models have blossomed under the wake of the COVID-19 pandemic. This change in the labour market has spurred employers to consider how employees can be effectively managed while defying location-based employment. In all Canadian provinces, the demand for workplace surveillance technology that tracks keystrokes, eye movements and facial muscles has rapidly increased. With approximately 40% of Canadian workers currently holding jobs that can be performed remotely, there remains an important question for many: can an employer spy on their work-from-home employees?

In British Columbia, the Personal Information Protection Act (“PIPA”) is the primary law that dictates how an employer can collect an employee’s personal information in the private sector. Most of the time, an employer will need to let their employee know that they are generally collecting personal information, but there are a number of exceptions. For example, PIPA states that an employer can collect, use and disclose an employee’s personal information without their consent if the collection is done to establish, manage or terminate that employee. In addition, if the information is publicly available or if consent from the employee cannot be collected in a timely manner, there’s no need to inform the employee.

For both employers and employees, it is important to understand how and when an employer can collect a work-from-home employee’s personal information to measure productivity. For example:

  • There is no hard rule for an employee’s right to privacy as a remote worker. Whether or not an employee has a right to privacy will depend on many factors such as what information is being collected, the sensitivity of the information and whether it would make sense for the employee to have an expectation of privacy while working at home.

 

  • An employee is entitled to expect privacy in the information contained in workplace, if their employer allows personal use on their work devices, or if it would be reasonably expected. This means that an employer does not have unlimited access to the information on an employee’s computer, laptop, or other electronic devices owned by an employer. An employee’s expectation of privacy is even greater if they are using their own personal devices to perform their work duties. At the same time, an employer can access an employee’s device used for work to “manage” the employment relationship which is dependent on individual circumstances.

 

  • An employer very likely needs an employee’s consent before implementing workplace surveillance technology, such as keystroke tracking. This means that an employer will need to inform their employee what information is being collected, who will have access to it, and why it is being collected. Once the employee understands the scope of surveillance, they can consent or refuse their employer’s desire to collect personal information. For this reason, it is typically in an employer’s best interest to publish a policy that applies to monitoring its employees’ productivity and provide a copy to all staff.

 

 

If you have any questions about this topic or need legal advice in relation to this or any other issue, please contact us to set up a consultation.  We can be reached by telephone at 604-705-0022 or by email to info@sorensensmith.com.

 

Blog Post by Ashley Heisler, Articled Student

August 22, 2022