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Keeping tabs on remote workers may sound tempting, but do your homework first

You’re CEO of a large company. In response to the pandemic, you’ve allowed employees to work remotely. But you’re becoming skeptical about how much of their workday is actually, well, work. To ensure you’re not being played, you’re considering embedding keystroke logging software in company-issued cellphones and laptops. Are you on thin ice?

How do I keep tabs on thee? Let me count the ways. I can view every email and social media post you make. (Congratulations on your anniversary! I would have chosen orchids, but that’s me.) I can see your browser activity and, if I choose, every keystroke you make. (Ron Jeremy? Please.) I can access where you are (GPS) and know if you’re wearing pants (webcam). Even your private conversations aren’t. (Just to clarify, my paternity is not, and has never been, in question.)

It’s a cliché to say that COVID-19 changed everything, but sometimes clichés are true. Since the pandemic’s onset, working from home is the norm—and so, it appears, is the concurrent popularity of employee monitoring software from companies like Teramind and InterGuard.

As reported in the Washington Post, a recent poll of large U.S. companies (with 1,000-plus workers) found that 60 percent used some form of employee monitoring technology, up from 30 percent before the pandemic. Most of the popular services scrape browsing histories, screenshots, emails, keystrokes and mouse clicks. (Many also offer a “stealth mode” that can be activated without the employee’s knowledge.)

What a trove of dubiously acquired treasure! But in Canada, just because electronic monitoring software is legally available doesn’t mean that it’s OK to use it—even if the purpose is essentially to confirm that your employees are doing what they’re supposed to be doing.

In B.C., the Personal Information Protection Act restricts how much, and under what circumstances, organizations can collect private information. And what is permitted is strictly limited. “Monitoring employees through surveillance is only allowed when it’s reasonably necessary. And there’s a very high threshold for what is ‘reasonable,’” says Pamela Connolly, a lawyer with Vernon-based Ukrainetz Workplace Law Group.

As a business owner, getting what you pay for is part of the gig, and with remote work now pretty much standard, time theft is a major concern. But can our fictional CEO use spyware to evaluate productivity? “If this is the first step in their path, then they’re overdoing it,” Connolly says. “Basically, they’re using a sledgehammer to swat a mosquito.” In these situations, the CEO should exhaust other viable performance management options, since by using electronic monitoring they’d be casting an unacceptably wide and intrusive net.

So what, then? You simply can’t go there? Not necessarily. But if you do, you’ll need to justify your actions. Plus, you’ll also have to tell workers what you’re up to, and in most cases, they’ll need to give informed consent. In other words, our CEO can monitor the use of company-issued electronics—as long as this policy is reasonable, above board, clearly defined and explicitly communicated.

(Not every scenario requires employee consent. But it’s necessary to give notice. So even if, say, you’re compiling a dossier on a worker’s deviant web surfing behaviour with an eye toward putting them on blast…you need to let them know what you’re doing.)

Really, though, who’s watching the watchers? The concern—and it’s far from baseless—is that once a particular technology exists, it’s likely to be used. For a long time, ethics has played catch-up to new inventions and technology, and once the proverbial genie is out of the bottle, stuffing it back in can be almost impossible. For some employers, it may simply be too tempting to throw caution to the wind and surreptitiously dredge as much personal info as possible. Just because they can. For now.

Fictional scenario. Not intended as legal advice.