A study found that employees whose employers used surveillance heavily 'had lower levels of job satisfaction and trust in their employer and higher stress levels.'GETTY IMAGES
Gone are the days of employees thwarting workplace mouse-tracking software with retaliatory mouse-moving programs.
The post-pandemic shift toward remote and hybrid workplaces triggered an explosion of artificial intelligence-powered employee monitoring applications that can track employee location, analyze productivity and even monitor the emotional register of digital water-cooler talk. While these tools give employers unprecedented access to the habits and behaviours of their work force, experts in employment law and human resources are navigating legal and ethical questions in the wake of the surveillance tech and say the tools, when misused, can create a break in trust and may ultimately not be worth using.
These technologies aren’t new, says Philippe de Villers, chair of Chartered Professionals in Human Resources Canada, which represents over 31,000 HR professionals nationally. Mr. de Villers says employee monitoring software emerged as a security measure against network attacks, phishing and to safeguard potentially unsafe or illegal behaviour from employees.
However, he noticed a shift in the application of this software in 2018 when he learned about the productivity-measuring tools in Microsoft Viva, which he says can monitor and assess patterns in the work and conversation of employees. According to Mr. de Villers, Viva can analyze an employee’s meetings and conversations – the number of meetings, the number of participants in a meeting, how they participate, whether they start late or go over time, whether an agenda was set and even the mood of a meeting.
While there was a spike in the percentage of Canadians “usually working from home” at the beginning of the pandemic, the number now is still about three times (around 20 per cent) what it was in 2016, according to Statistics Canada. In response, employers around the world were “panic-buying” surveillance technologies “to ensure that workers are not circumventing responsibilities or failing to meet productivity targets,” according to a 2021 report from The Dais, a Toronto Metropolitan University think tank.
Companies like Hubstaff reportedly quadrupled the number of its U.K. customers. Video conferencing apps like Sneek, which takes photos of workers through their laptop webcam every one to five minutes, reported a fivefold increase in users during the first lockdown, according to the Dais report. “I’ve heard a lot of CEOs say: ‘Well, if I don’t see my workers, I don’t know for sure that they’re working,’ " Mr. de Villers says.
Devin Jarcaig, an employment lawyer and partner at Mathers McHenry and Co., believed she was familiar with employee surveillance technology, as she works with clients in the financial sector.
“On a trading floor, there is already a lot of monitoring of phones, of computers,” Ms. Jarcaig explains. But upon preparing a paper for the Ontario Business Association in 2023, she says “even I was surprised” by the scope of what these technologies can do – and what is legal for employers to monitor.
A 2024 CNBC report found companies like Walmart, Starbucks and Chevron have been using Aware AI, which monitors employee sentiment in chat logs.
A 2023 report from The Dais found 70 per cent of employees surveyed said that some aspect of their work was digitally monitored. Nearly one third reported that they experienced monitoring that involved location tracking, webcam recording, keystroke monitoring, the screenshotting of computer monitors or biometric scanning such as facial features, voice or iris scan. The report found that these employees “had lower levels of job satisfaction and trust in their employer and higher stress levels.”
Updates to the Employment Standards Act in 2022 mandate employers with more than 25 employees to disclose to them what kind of electronic monitoring is taking place. “It has to describe how and in what circumstances they’re monitoring [employees], why they’re doing it and the date the policy was prepared,” Ms. Jarcaig says, along with the date of any updates to company policy. “But it has no limits on what kind of forms of electronic monitoring they can use.”
She says privacy experts have been critical of the lack of protections available to employees, and notes that the Ontario Human Rights Code protects against workplace discrimination. Though there aren’t any cases that offer guidance on workplace discrimination as it relates to employee surveillance technology, she says “employers should be mindful that electronic monitoring can’t be used in arbitrary and discriminatory ways.”
Just because employee surveillance software may be legal, it may not always be ethical or even productive. “Oftentimes, when people realize everything they do is being monitored, it creates a break in the trust, and this can be very hard to overcome,” says Mr. de Villers.
The 2021 Dais report conducted a literature review on employee surveillance and found that intrusive surveillance could be more trouble than it is worth. One study on Canadian public servants determined technologies employees found “very unreasonable” involved using non-visible cameras, personal devices that record audio or video and monitoring employee location. The Dais report found another study that said such monitoring led to high turnover rates, absenteeism, low morale and lower levels of productivity.
“Knowing these things, is it necessary to monitor [employees] super intrusively? It’s great to get metrics to improve your business. But beyond that, is it good for your business in the long run?” asks Tiffany Kwok, a policy analyst at The Dais.
Mr. de Villers says these tools are not a replacement for proper management strategies. “A company stopping to rely on managerial practices and relying solely on control and coercion will get poor engagement results from its staff, crippling its results at the source,” he says. “So how do you give [employees] objectives? How do you manage their performance based on deliverables? That’s the component that didn’t follow” in the rollout of these technologies.
He advises employers to set clear intentions on what to use these technologies for. “Are you putting tools in place to monitor potential fraud? Or are you putting tools in place to help them be better managers, or even help your senior management better understand your labour?” he says.
Clear and open communication of how they are being used will help foster trust – and setting boundaries on what will not be monitored can be just as crucial, Mr. de Villers says.
Finally, he suggests that the use of these technologies needs to be weighed against your company values. “If your values include trust, integrity, respect, then do you really want to put tools to monitor your people because you’re afraid they’re going to steal time?”