Electronic Monitoring of Employees
In today’s dynamic work landscape, businesses are continuously seeking innovative ways to optimize efficiency and productivity. Among the myriad of strategies, leveraging Artificial Intelligence (AI) has emerged as a powerful tool for tracking and monitoring employee performance.
In 2022, the Ontario government amended the Ontario Employment Standards Act, 2000 (the “ESA”) to require employers that employ 25 or more employees to have a written policy on the electronic monitoring of employees. The policy must state whether or not the employer electronically monitors employees. If the employer does, the policy must include:
- i) a description of how and in what circumstances the employer may electronically monitor employees;
- ii) the purposes for which the information obtained through electronic monitoring may be used by the employer;
iii) the date the policy was prepared (the date must include the day, month and year); and
- iv) the date any changes were made to the policy.
In simpler terms, the use of artificial intelligence to monitor workers, and whether the resulting data can be used to terminate an employee, depends on the specific details of the electronic monitoring policy.
The caselaw on electronic monitoring expands on the ESA requirement for an employer to have a policy and inform employees they are being monitored. Having an electronic monitoring policy does not provide the employer with a carte blanche to track their employees. The surveillance must be for a genuine business interest and balanced against the worker’s interest to maintain their own privacy.
Generally, an employer may use the electronic monitoring data in the discipline or termination of an employee where their policy on electronic monitoring and its application are in compliance with the ESA or other statutory regimes, reasonably undertaken to address a legitimate business interest with consideration to the employees’ legitimate privacy interests.
The following two cases highlight how monitoring technologies can aid employers in addressing time theft in the workplace.
- i) Enbridge Gas Inc. and Unifor, Local 975, 2023 CanLII 2937 (ON LA)
In a 2023 labour arbitration matter, monitoring technology was used to uphold a termination for cause. After receiving a complaint that an employee was not showing up to his assigned work site, the employer discovered that the employee was paid for more than 200 hours of work he did not complete. The employer terminated the employee for cause and successfully upheld the termination grieved by the employee’s union. Relying on GPS data in the employee’s work vehicle, the arbitrator was satisfied that the employee committed time theft.
- ii) Besse v. Reach CPA Inc. 2023 BCCRT 27 (CanLII)
The BC Civil Resolution Tribunal (“CRT”) decision in Besse v. Reach CPA Inc. offers another instance of time theft and a welcomed outcome for employers concerned about productivity in the emergent remote work context. In this case, the CRT relied on evidence from a time-tracking program to dismiss a claim for wrongful dismissal and to order the repayment of wages for unworked hours.
Reach CPA Inc. became troubled by the performance of a relatively new hire working remotely. The employee was over-budget and behind schedule in their tasks. Further, the employer noted irregularities in the employee’s timesheets, including hours billed to files that they did not appear to have worked on. The employer analyzed data from a time-tracking program installed on the employee’s computer with their knowledge. It concluded there were 50.76 unaccounted hours reported on the impugned timesheets. The employer dismissed the employee for cause on this basis and the employee subsequently advanced a claim for wrongful dismissal.
The CRT found that the time-tracking program was likely to accurately record the employee’s work activity and that it was reasonable to conclude that the employee engaged in time theft. Not only did the CRT find that dismissal for cause was appropriate in the circumstances, it ordered the employee to repay the wages she received for unearned hours.