As we continue to work from home, employers must continue to find a way to monitor their staff, however employees also have a right to know that they are being monitored. I had written an article on how employers track and spy on their employees, the programs they use and suggestions on implementation policies. But what happens to the employers that don’t respect digital privacy and take it a little too far? What about the employers who not only track their employees for work performance purposes, but employers who don’t inform their staff and perform after hours tracking!? This article discusses the legalities of employee tracking and what employees can do to protect their digital privacy while working from home as well as steps to take if their employer has been confirmed to be monitoring staff without consent.
Here is a useful employee monitoring resource for both Canadians and US individuals working from home → Employee Monitoring Resource — A Canadian and US Perspective
Is Employee Tracking Legal?
Employee tracking is legal, however employers have a moral and legal obligation to inform their employees. Employers must be able to present a clear and detailed outline of employee expectations, software and programs being implemented and utilized for employees to be monitored and tracked. Employers have no reason to track employees after work hours, however there has been a case where an employer felt this was necessary and when the employee refused, she was fired — a case study discussed further in the article.
Employees should not depend on employers to be completely open and honest with them, therefore, employees should take the time to educate themselves and educate and know their digital rights. While employee tracking is legal, there are a few steps and precautions that employees should take in order to prevent or minimize any legal issues. Employees should also be aware of steps to take if they have confirmed that their employer has been monitoring employees without notice nor consent.
Employee Privacy Rights — Know Your Digital Rights
Employees have a general right to privacy in the workplace — including their workplace devices, unless it is clearly stated otherwise on a signed employment contract. Employees should familiarize themselves with privacy acts based on their location and jurisdiction.
- PIPEDA → Personal Information Protection and Electronic Documents Act — Canadian Individuals
- ECPA → Electronic Communications Privacy Act — US Individuals
There are unionized and non-unionized organizations that you or someone you may know, work for. As an employee, below is a link that provides a brief overview of surveillance in the unionized organization and surveillance in the non-unionized organization.
- Analyzing collective agreements based on compliance → Surveillance in the unionized organization
- Analyzing a general right to privacy → Surveillance in the non-unionized organization
Complaints Under the Act — Employee Monitoring Consent
If employees feel that their organization is not compliant with federal regulations, not in compliance with PIPEDA or ECPA, or in any violation of inappropriate misuse of employee tracking software, employees should bring the matter to the attention of their HR Department and/or Ombudsman. For Canadians, if this does not work, they can file a formal complaint with the Privacy Commissioner, who will act as the “privacy ombudsman”. In some incidents, cases will apply to the Federal Court for a hearing of the complaint.
*Below are 3 useful resources for both employees and employers:
2 — Key privacy protection tips for federal human resources professionals*
3 — Mobile devices and online services at work*
Can You Refuse to be Monitored?
Employees have the right to protect their digital privacy, however employees have just as much responsibility when adhering to company digital policies being implemented by their employer. There was a case, where a young female was working for a company that had implemented an employee tracking software and had requested that each employee download an application to their device. This employee had no problem be monitored during work hours, however when she questioned her employer about the after hours tracking and monitoring through the downloaded app, the unconventional and unsettling response was enough for this employee to remove the application from her device. Shortly after removing the application, the employee was fired. How would you feel if your employer was tracking you after hours!? — — for a more in depth look at the incident, click to read the article → “Employee Says She Was Fired for Refusing to Be Tracked 24/7.”
Work from home opportunities will continue to rise, therefore consider the following questions if you work from home:
-What is your role at your job working from home and how is your digital privacy protected?
-What devices are required for you to perform your job?
-Did your employer provide the devices for you to work from home?
-What software is required to perform your job on these devices?
-What employee tracking software is being utilized to track your performance?
As long as the employer is transparent, honest and in compliance with digital privacy laws and employees adhere to company policies while respecting company property; there should be no reason why a company cannot have a healthy organization, developing digital trust amongst staff thus creating a healthy digital work culture. While the dream is to have a healthy digital work culture, the reality lies between a battle of the two — digital privacy and digital access; know your digital rights.
Read my previous article → How Employers Easily Spy on You While Working From Home
Rene Eliz
