Can employers monitor their employees’ electronic activity?

The new legislation does not prohibit employers from using monitoring software, however they must have a policy which addresses the following, if they intend to electronically monitor employees:

1. A description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used; and
2. The date the policy was prepared and the date of any changes to the policy. Any amendments must be provided to employees in writing within 30 days.

When a new employee is hired, they must be provided with a copy of the policy within 30 days of their start date.

While there is a presumption that employees have a reasonable expectation of privacy, this presumption can be displaced through an employer’s policies.

There is no statutory recourse if an employee is of the view that the content of the policy or scope of monitoring is unreasonable. However, certain common law remedies may be available.

Employers should consider the following when drafting their policies:

Is the use of monitoring software reasonable and necessary?

• What is the scope of the software? Does it monitor all activity, or simply record when employees log on and log out of their computers when they begin and finish working?
  
  
• How will the information collected be used? For example, will it be used to determine employee productivity? To confirm attendance? To determine how long an employee is away from their computer during the day?
  
  
• How can the employer ensure all employees are made aware of the existence of the policy and its content?

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