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THE QUESTION
My employer requires us to be in the office two days a week, but management has never said anything about how our days are being tracked. I recently heard a rumour that they are monitoring our badge scans. If the company is monitoring this, do they have to tell us? And even if not, doesn’t it make sense from a leadership perspective to tell employees? People are often let in by coworkers and may not scan their badge one day because they don’t know. Could we be penalized for this if we were never told how they are monitoring us?
THE FIRST ANSWER
Alison Longmore and Dina Mashayekhi, partners, Jewitt McLuckie & Associates LLP, Ottawa
Employers generally have the right to manage the workplace, including setting requirements for when and where work is performed and tracking attendance at work. These rules must comply with health and safety laws, minimum legislative standards, human rights legislation and individual employment contracts or collective agreement obligations. In the absence of such limitations, however, employers are generally permitted to make these types of rules. If an employer has not clearly communicated that a breach of a rule will lead to discipline, they may not be able to enforce discipline depending on the terms of your employment contract or, if you’re unionized, the terms of the collective agreement.
In Ontario, the Employment Standards Act requires employers with more than 25 employees to have an electronic monitoring policy describing how employees are monitored (which may include badge scans) and the purpose for which information is collected.
Other provinces don’t yet require employers to adopt such a policy, but some, such as British Columbia, Alberta, Quebec and federally regulated workplaces, do have privacy laws which limit the extent of personal information that can be collected.
Therefore, if you’re in Ontario and your employer has 25 or more employees and they’re using badge scans to monitor office attendance, they must inform you of this through a written policy. If you’re in a different province or work in Ontario in a workplace with fewer than 25 employees, it could be more difficult for the employer to justify penalizing you if you’ve never been made aware of the rules and consequences.
If you’re uncertain about your rights, please consult an employment or labour lawyer.
THE SECOND ANSWER
Joanne Cave, lawyer and principal, Cave Law, Edmonton
The answer to this question relies on the privacy legislation that applies to your place of employment and your employer’s workplace policies regarding privacy, employee monitoring and office attendance expectations. Privacy legislation varies across Canada, depending on where you are located, whether your employer is provincially or federally regulated and whether you work in the public or private sector. In some provinces, such as Ontario and Quebec, there are specific legislative provisions that address employee electronic monitoring.
Generally, employers are not required to obtain employee consent to engage in this type of electronic monitoring, but they should provide notice if they are doing so. This notice is typically provided through a workplace policy, which you would be expected to review. Employers should only engage in electronic monitoring to the extent that is reasonable and necessary to manage their workforce and ensure employee and workplace safety. Since your employer’s office attendance expectations have been made explicit, it is possible that they may be using badge scans to assess compliance or for other reasons (for example, fire code purposes). If they are doing so, this should be reflected in their policy.
If you are concerned about the potential for electronic monitoring, having a conversation with your manager or someone from human resources would be the first step. If you have further concerns about this practice, consider contacting the provincial or federal privacy commissioner (depending on whether your workplace is provincially or federally regulated). Unionized employees should discuss this matter with their union to assess whether it would be appropriate to file a grievance.
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