With only a few business days left before October 11, 2022, when employers must have a written Electronic Monitoring Policy in place, SpringLaw is fielding regular questions from employers about their near-final drafts. The policy requirements and meeting this new transparency obligation are discussed in our prior blog: New Electronic Monitoring Policy: The What, How and Why for Employers. The deadline for providing a written copy to employees is November 10, 2022.

Step One: Review Your Current Electronic Monitoring Practices

Employers with a buttoned-down approach should start with a broad review of their current monitoring practices. This may unearth some overkill monitoring and data collection – passive and unintentional, or otherwise. 

Step Two: Determine What Practices Need to End, Change or Continue

Decide whether the monitoring is worthwhile by asking:

1. Is it necessary? 
2. Is it effective?
3. Is the loss of employee privacy proportionate to the employer’s right to protect its assets and manage employee safety, performance, and productivity?
4. Is there a less intrusive way to gather the information?  

Whatever monitoring practices make the cut need to be outlined in the Electronic Monitoring Policy, along with the intended use of the information gathered.

Step 3: Communication is Key!

As with any new workplace policy rollout, employee communication is key – especially where it involves employee monitoring. Many employers are far too busy to analyze an employee’s keystrokes or their whereabouts after a lunchtime workout. From an employee relations standpoint, the hope is that data from employee monitoring is never actually needed or reviewed. Employees do sometimes go rogue, however, and employers may have reasonable bases for calling up and reviewing data from their electronic monitoring practices. A written policy giving employees notice of this possibility is essential. Assuming the loss of employee privacy in this process is proportionate to the benefit gained, and there was no less intrusive method of gathering the information, then all should be fine.

Finding A Fine Balance

Following the ‘great resignation’ and in today’s climate of ‘quiet-quitters’, boundary-setting employees will have employee privacy rights at the top of their list. Some types of employer monitoring may be surprising and downright offensive in terms of their intrusiveness, leading to pushback from employees (e.g. employer access to random screenshots of employee computer activity, or viewing of ‘private’ chats with co-workers). 

Employers should anticipate being pressed after setting out the ‘what’, ‘why’ and’ how’ of their electronic monitoring. If employers take a purposeful and practical approach and limit their monitoring to only what is necessary and reasonable (and effective), it is more likely to be accepted by employees. It is also important to emphasize that employee privacy rights are not impacted by the new policy and that the employer will act reasonably and in the least intrusive manner. Giving employees that written heads up that information gathered through monitoring may be used by employers is key. 

A key goal of any properly implemented, reasonable Electronic Monitoring Policy should be to deter unauthorized workplace conduct, not to create that gotcha moment. Aren’t we all on our best behaviour if we know we might be being watched?

Need Help With Your Privacy Compliance?

If you need a hand rolling out both your Electronic Monitoring Policy and overall compliance system, SpringLaw has teamed up with The PrivacyPro and nNovation to provide an integrated privacy and employment law offering, along with the expertise to tactically review your privacy ecosystem and roll out solutions. Contact us if you would like to learn more about our collaborative Employee Monitoring Service Package to help your organization get compliant on time.