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Howard Levitt: When it Comes to Employee Tracking, Honesty and Proportionality are the Orders of the Day

posted 2 years ago

The Ontario government will introduce new legislation in late March mandating that businesses with 25 or more employees disclose when and how they electronically monitor them. The changes are a clear byproduct of remote work trends, but employee surveillance is by no means an invention of the digital age.

Employers have always monitored and tracked workers’ activities and have historically done so using means more exceptional than mere keystroke trackers or browser monitoring. Revolutionary industrialist Henry Ford, who in 1914 more than doubled his employees’ wages to $5 per day (much to the chagrin of the rest of the automotive industry), is one such example. That historic wage increase came at a steep price: Ford wanted to know when and how his employees were spending their new funds and had no qualms about going to extraordinary lengths to do so.

Ford went on to create a “Sociological Department,” the sole purpose of which was to surveil employees and educate them on how to not only behave as model workers, but model citizens. The company’s team of 200 investigators would visit workers’ homes to ensure they were well-kept, would monitor spending habits and alcohol consumption, and even went so far as to check in on children’s school attendance and divorce filings. Employees who did not make the cut risked termination.

I imagine most readers would be outraged if their employer implemented a similar policy. A swift resignation, if not a lawsuit, would be sure to follow.

Morality enforcement of this degree is obviously not welcome in our time: we do not recommend that employers show up unannounced at employees’ homes or attempt to track their spending habits. But the very nature of the employment relationship will almost always be such that some degree of monitoring is necessary and this is particularly so when an employee’s workplace is physically removed from that of their boss. Even in a traditional office space employees cannot expect absolute privacy. There is nothing scandalous about your boss monitoring your browser history or strolling down the hall to check if you are physically present at your workstation and, as discomforting as it may be for some, employers have the same interests to protect whether their workers are stationed in a cubicle or home office.

Why then should expectations be any different when working from home? People naturally expect a greater degree of privacy in their private residences than they do in the traditional workplace and in many cases these expectations are well-founded. But employers are obliged to maintain a safe workplace and they are entitled to expect and enforce a productive one, regardless of work location. A fair balance must be struck between the two.

While the proposed legislation appears to be directed at transparency in employee monitoring as opposed to regulating the actual methods employers use, any business considering the use of digital surveillance technologies should ask themselves the following:

  • Is the measure necessary to meet some important interest? This could be to address demonstrated drops in productivity, chronic absenteeism, time theft, or property theft, or for safety-related reasons such as where the employer has reasonable grounds to believe harassment may be taking place in the digital workspace.
  • How effective is the measure? Many employers are under the mistaken belief that digital surveillance technologies are infallible while employees are invariably finding ways to circumvent them. Increased digital monitoring will naturally prompt employees to seek out counter-surveillance technologies – for example an Amazon search for “mouse jiggler” (a device that simulates computer mouse activity), begets hundreds of results.
  • Is the loss of privacy proportionate to your right to manage the workplace? Employers should always opt for the least intrusive means of employee monitoring.

In any case, the keys to effective employee monitoring in the digital age are honesty and proportionality. This not only engenders trust between employers and their workforces – which can lead to significant productivity and retention boosts – it ensures that they are on side of their legal obligations to respect personal privacy.


Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada. Katherine Golobic is an Associate at Levitt Sheikh.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-when-it-comes-to-employee-tracking-honesty-and-proportionality-are-the-orders-of-the-day


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