My house, my rules
Expectations of employee behaviour should also be clear. Typically, in order to avoid legal issues later, an employer should implement a policy that notifies employees that it does monitor their system and online activities, and that the employee should have no expectation of privacy when using the company’s systems.
There are two ways to do it. Some employers will have employees sign an acknowledgement of the fact that its employer does monitor at the time of hire or when a new policy is implemented. Other employers will just rely on the existence of the policy. Andrea York, a partner at Blake, Cassels and Graydon, says her firm writes numerous privacy policies for organizations, including Internet, e-mail and other IT usage policies.
Determining what conditions to include depends upon where the employer is located. A federally regulated company governed by the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) will have more restrictions on what it can monitor (due to the privacy laws). But a provincially regulated company has very few restrictions.
York says, in her experience, a company will almost always suspect an employee of theft or some other kind of wrongdoing before targeting them. For example, employers started tracking one Facebook-crazy employee, who, it turned out, was in fact spending an average of 25 hours per week on social networking sites and the Internet instead of doing her work. She was fired.
But, says York, it’s very difficult to terminate with cause. “It’s not unusual to see lawsuits arise when an employer takes the position that it has cause for termination, especially for something like Internet use,” she says, adding that “99 per cent of cases” are resolved without a trial.
York says, besides advising employees that monitoring is conducted, they’ll also want to limit what employees download onto the company’s systems or prohibit downloading entirely to eliminate viruses that could overload the company’s systems. Organizations might also want to make sure there’s a reference to prohibiting the sending of discriminatory and other offensive material.
Also, at the time of termination, make a point of quickly isolating the employee’s computer — depending on their reasons for termination — and do a search of what he or she has been doing. “If they’ve gone over to a competitor, you’re going to want to see if they’ve forwarded your entire client list to that competitor,” York warns. Finally, if you do decide to use monitoring software, keep in mind that it can have a negative effect on company morale or, perhaps worse, even discourage potential employees from coming on board.
Perrier-Knox says it’s unlikely that the younger members of the workforce would question the fairness of it, but they would probably think that it speaks to a company culture that they might not want to be a part of.
“People like to have flexibility, they like to have work/life balance,” she says.
“The thought that they are not being trusted bothers them. But I think employees who are in their forties, fifties, and sixties are accustomed to being monitored and working under a stricter work schedule and structure. They don’t question it. That’s changing.”