CASUAL LEGAL: Remote Work and Employee Privacy

Remote Work and Employee Privacy

By Lauren Chalaturnyk

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

As COVID-19 restrictions lift and employees begin their return to work, many employers may be inclined to maintain some type of remote work arrangement for their employees. When implementing such an arrangement, employers should be mindful of some of the privacy considerations that could apply.

One of the most controversial issues in relation to remote work is the monitoring of employee performance and productivity while they are at home. There is employee-monitoring software available; however, use of this software comes with a host of concerns regarding privacy.

When an employee is at the job site, they have a lessened expectation of privacy because some measure of scrutiny and surveillance is to be expected to ensure business objectives are met and company time is used effectively. However, when an employee is working at home, their expectation of privacy increases significantly as compared to the workplace. This is particularly the case where an employee is using their personal device to complete work at home. Personal devices attract a greater degree of privacy than devices provided by an employer.

That said, this does not mean employers cannot monitor employee performance or productivity while employees are working from home. There are simply a number of considerations employers should keep in mind:

• Put any monitoring practices into a policy that employees have been given time to review, understand, and agree to (if employees do not agree to the policy, but they have been given sufficient time to review and understand it, the policy can still be enforced against those employees)
• Clearly explain to employees what information is being collected, how it is stored, who will have access to it, how it will be used (i.e. discipline or termination), and how long it will be kept
• Ensure that monitoring practices serve a legitimate business purpose
• Use the least intrusive option possible in order to meet that legitimate business purpose

Finally, any policy put in place by an employer that involves the monitoring of employee performance and productivity must be in keeping with the Freedom of Information and Protection of Privacy Act.

While employers must be cautious when implementing employee monitoring systems for remote work arrangements, this is permissible and in some cases may be necessary to ensure the continued success and effectiveness of the business.