The popularization of the remote work arrangement amid the COVID-19 pandemic has largely resulted in a focal shift from where work is done to how efficiently work is done. There has been some discussion among employers that remote work has given way to the rise of “time theft” by employees, a phenomenon in which employees who are supposedly working from home and being paid for their time are, in actuality, doing little to no work at all. In response, some employees have claimed that despite a dip in productivity per hour, they are spending more hours logged on and at work, and argue that if any theft was occurring in the remote workplace, it would much more likely be “wage theft”.
Studies on this hotly debated issue are generally inconclusive, in part because they often rely on data extracted from timekeeping software. Such software may not accurately capture the entire picture related to productivity and work performed, while also presenting other possible pitfalls. Employers considering the use of any kind of monitoring software should be aware of its limits and any privacy concerns that may arise. Ultimately, a comprehensive Work from Home Policy remains the most reliable way for employers to set expectations around productivity and maintain it.
Pitfalls and Privacy Concerns of Productivity Monitoring Software
In the early months of the COVID-19 pandemic, internet searches for “employee monitoring software” and similar terms skyrocketed. Given the technology-reliant nature of the remote workplace, use of monitoring software may seem natural. Such software can be greatly advantageous, offering an easy and standardized way for employers to track productivity, keep employees accountable, and comply with their obligations to keep records of working hours and pay overtime under employment standards legislation.
As noted above, however, monitoring software can be inaccurate and may underestimate or overestimate work productivity. For example, software that simply tracks mouse or keyboard activity, or the length of time that a workplace device is turned on, will not capture the extent to which tasks are actively being worked on. Even more advanced software will fail to capture time that employees spend on work while away from the computer or offline. Employers should therefore ensure that they have a fulsome understanding of any monitoring software used to measure productivity, including its limits, and not solely use the results of such software to make decisions on possible employee overtime entitlements. Those employers who become overly reliant on software to accurately measure productivity run the risk of offending employees, who may dispute the data, become litigious, and make claims for additional hours worked.
Importantly, employers should be aware of, and seek guidance on, the serious privacy concerns that may be raised by monitoring software. Because the traditional, centralized workplace is not considered a private space, employers are generally permitted to take reasonable steps to supervise on-site employee activity. In contrast, because remote work occurs in private homes, employees’ reasonable expectations of privacy are arguably enhanced.
Employers should carefully consider their responsibilities under any applicable privacy laws depending on their jurisdiction, and generally limit their collection of information only to what is necessary to manage employee productivity. Unless exceptional circumstances exist, particularly intrusive software such as keylogging should also be avoided.
In addition, previous guidance from the Supreme Court of Canada held that an employee’s reasonable expectations of privacy in relation to work computers must be determined by considering “the totality of the circumstances”, including the nature of the information being collected and the employer’s policies, practices, and customs (for further information, please see our previous blog). It is therefore imperative for employers to address expectations for the use of company computers and potential privacy concerns related to monitoring software it may seek to implement in a clear workplace policy, as well as determine whether employee consent may be required for such software.
A Comprehensive Work from Home Policy
As a best practice, employers should develop a Work from Home Policy that clearly conveys expectations regarding productivity and hours of work, regardless of any monitoring software they may choose to implement. Such a policy remains the most reliable method for employers to communicate expectations, and can help greatly in avoiding common pitfalls associated with remote work arrangements.
A Work from Home Policy should clearly address:
- expectations for employee availability, including parameters for hours of work and breaks, while meeting employment standards obligations;
- guidelines regarding how hours worked will be tracked, and how overtime will be approved;
- expectations for work productivity and engagement, including any objective performance measures and goals;
- if implemented and depending on particular privacy legislation that may apply, details of any monitoring tools or software, including the purpose, limits, and duration of the information collected, among other considerations;
- expectations for the use of company equipment or devices;
- other expectations such as dress code, or when work from a centralized office or travel to client locations may be necessary;
- confidentiality obligations to protect sensitive information about an employer’s business and its clients;
- health and safety considerations and work from home setup, including any supports offered; and
- how accommodation can be requested and addressed.
As employers look to permanently implement “hybrid workplaces”, remote work and its attendant challenges may well become the norm. Employers will have to seriously consider how to measure and maintain work productivity—as well as employee engagement—when employees are working remotely. Before any monitoring tools are implemented, careful consideration must be given to the limits of such tools and any privacy concerns that may surface. Even in the face of increasing technologization, however, the most tried-and-true method to set workplace expectations while minimizing liability remains a clearly worded and comprehensive Work from Home Policy.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
