Can Employers Use Electronic Monitoring to Punish Employees for Time-Theft?
- February 16, 2023
- Rahul Soni
- Termination
- 0 Comments
The COVID-19 pandemic forced many employers to explore unorthodox work arrangements, such as remote work, working from home, or hybrid work. These flexible work arrangements allowed organizations to function despite the government-imposed lockdowns.
In the post-pandemic world, the remote work model has reshaped the modern workplace. The organizations offering flexible work arrangements report increased employee productivity, better employee performance, and higher profitability. Further, remote employees report a better work-life balance, increased savings, and reduced cost of commutation.
Despite their advantages, flexible work arrangements come with their own set of challenges for employers and employees. While remote workers must deal with increased isolation and blurred work-life boundaries, employers must find ways to maintain a certain level of employee productivity and prevent time theft by remote workers.
Time theft refers to a situation where an employee is paid for the time they have not worked or the work they have not performed. The concept of time theft covers a broad range of employee behavior, including but not limited to
- Taking longer than scheduled breaks;
- Using the work hours to complete household chores;
- Slacking off at work;
- Browsing the internet or social media at work; and
- Logging off before the end of the workday.
Employers may prevent time theft by monitoring employees’ activities in the workplace or during work hours in a hybrid or remote work environment. The article below will discuss the employer’s right to electronically monitor employees’ activities and fire them for time theft.
Is It Legal For Employers to Electronically Monitor Employees’ Activities?
Electronic monitoring can be a valuable tool for employers and employees when used correctly. For example, employees may rely on electronic monitoring data to prove their allegations of workplace harassment or bullying. In contrast, employers may avoid employee productivity and performance problems by digitally monitoring their employees in a virtual workplace.
Before 2022, employers in Ontario could monitor employees while on the office premises or during the workday for remote employees without any statutory oversight. They could also employ measures to access employees’ work data, communication records, and internet browsing history without informing them. This led to calls for greater transparency and disclosure requirements for employers engaging in electronic monitoring of the employees.
In 2022, the Ontario government passed Bill 88: Working for Workers Act, 2022 (the “Act”), to regulate the employers’ right to electronically monitor employees. The Act amended the Employment Standards Act, 2000 (“ESA”) to grant statutory protections to workers in a rapidly evolving workplace.
The Act requires employers employing 25 or more workers to have a written policy regarding the electronic monitoring of employees. The policy must disclose the purpose, mode, and duration of the employer’s electronic monitoring activities and collection of employee data. Further, the employer must distribute the written policy among the workers and notify them regarding any amendments.
With the Act legalizing electronic monitoring subject to compliance with the statutory requirements, the employers may use such legally obtained data and information as evidence of time theft by the employees and initiate disciplinary proceedings.
Can Your Employer Fire You For Time Theft?
In Ontario, employee dismissals are usually categorized as with cause or without cause dismissal. A dismissal with cause occurs when an employer has a justifiable reason to terminate an employee’s employment without paying severance. On the other hand, a dismissal without cause allows an employer to terminate an employee’s employment contract at any point and for any reason, so long as they give the employee notice pay and/or severance pay.
In a recent British Columbia case, Besse v. Reach CPA Inc., 2023 BCCRT 27, the Civil Resolution Tribunal ruled that the employer had a just cause to terminate an employee for time theft. The Tribunal allowed the employer’s counterclaim for time theft and ordered the thieving employee to repay the wages earned during the period.
The case is not unique in the sense that it was the first time an employer accused an employee of time theft. What made it unique is that it was the first time an employer submitted electronic surveillance data as evidence of time theft, and the Tribunal admitted such evidence.
The Tribunal explained that time theft in the employment context is viewed as a very serious form of misconduct. Given that trust and honesty are essential to an employment relationship, particularly in a remote-work environment where direct supervision is absent, the employee’s misconduct led to an irreparable breakdown in her employment relationship with the employer, and that dismissal was proportionate in the circumstances.
In contrast, the courts and tribunals in Ontario have not considered the issue of time theft by employees in a non-unionized setting. As a result, it is still unclear whether an employer in Ontario has the right to terminate a remote employee engaging in time theft for just cause and reclaim wages for that period. However, this does not mean that the employers cannot take any disciplinary action against the employees for time theft.
The labor arbitration awards on the subject have upheld the employers’ right to discipline unionized workers for time theft. Usually, slacking off or occasionally browsing the internet at work may not justify the dismissal of an employee for cause. However, repeated violations of the employers’ policies against internet usage or slacking off at work may be just cause for dismissal where the employee failed to cease such behavior despite multiple warnings and the nature of the job requires employees’ continued attention.
Conclusion
The COVID-19 pandemic forced employers and employees to explore alternative work arrangements, such as remote work. This development led employers to electronically monitor employee activities to maintain employee productivity and performance standards.
In Ontario, employers have the right to monitor employees’ activities so long as they comply with the transparency and disclosure requirements under the Act. This means an employer may access the employees’ work, internet browsing history, and communication records provided they comply with their statutory duties.
Further, there is no law preventing employers’ use of legally collected electronic surveillance data as evidence of time theft by employees. This means an employer may initiate disciplinary action against the employee accused of time theft and ask them to repay the wages earned during that period. This puts employees in a vulnerable position.
An employment lawyer has the experience and expertise to help you navigate any such dispute with your employer. They can help you negotiate with your employer, explore your legal options, and advise you on your best next steps to achieve your desired result.
Contact Us
If you are an employee or an employer who requires legal advice and assistance regarding time theft and electronic monitoring at the workplace, our team of experienced legal professionals can help. Contact us by phone at 416.901.8560 or email us info@sonilaw.ca, and we would be happy to help.
About Post Author
Rahul founded Soni Law Firm, a boutique employment, labour, and human rights law firm, with the goal of taking his Downtown Toronto litigation experience and making it accessible to Ontario’s Main Street employees and employers.