Ed Canning: Employment law: Assume you are being electronically monitored

Electronic monitoring of employees has become more invasive and widespread over the years.

Once upon a time, video cameras in the workplace and GPS trackers were novel and rare. In non-unionized work environments, an employer didn't have to tell employees if there was a GPS in their delivery vehicle or a hidden camera at work.

That is changing ... somewhat. As of Oct. 11, employers with more than 25 employees had to adopt a written policy. It must be circulated to all employees. Oddly enough, even if the employer does not engage in electronic monitoring, it must have a policy saying as much.

The legislation covers email monitoring software and video cameras. It must indicate whether the company monitors internet and application activity and what documents are downloaded and websites accessed. It must indicate whether the company has keystroke trackers for keyboards or recordings for phone calls.

If you work at a grocery store as a cashier and the company wants to track your scanning speed, it must tell you. Of course, GPS monitoring is included as well as biometric technology and key card monitoring for access to the building. It is important to note that nothing in this legislation says you can't do these things, it's just that you have to be transparent about it if you have more than 25 employees. One assumes it only applies to employers with 25 employees or more as the government does not want to be seen to be putting too much of a burden on small businesses. The result is that your rights working for a small employer are not the same.

The policy has to tell employees what the information is or may be used for, the date of the policy and the date of any changes.

This is a sensible legislative change, but wise employees should already be assuming this kind of thing is happening. I never cease to be amazed by the cases I run into where employees assume work emails to their secret liaison are somehow private and will never be seen. I recently had a case where an employee was using the company phone for all kinds of personal apps, including their banking and online streaming account. They were actually willing to compromise the amount of money they received in their settlement to avoid having to give up the password to the phone the company owned. It makes one think there must have been more on that phone than just the above noted apps.

When GPS trackers first started to be a thing, many employers installed them in company vehicles without telling employees. Some of those employees had to fill out weekly time sheets logging their daily activity. Not knowing that the employer could see exactly where they were and for how long, they would end up in trouble. A two-hour lunch at the local strip club when you said you were on client calls does not usually go down well with most employers. They would be brought into a meeting to review their daily logs and to confirm they were accurate. Once they had, they would be confronted with the employer's knowledge of their lunch time activities. Many of these people ended up terminated for just cause without pay in lieu of notice. The employer would have a second nail for the employee's coffin. The first was the time theft but more importantly was the fact that they had lied to the employer's face. The relationship of trust had been destroyed.

Even if you work for a small employer, assume there is nothing private about the workplace or use of your employer's technology in any way, shape or form. If you are going to send messages complaining about your idiot boss, never send them from or to a work email address. People are watching.

Ed Canning practises employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com.For more employment law information: hamiltonemploymentlaw.com.