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The case against Big Brother at work Add to ...

Computers have revolutionized employee productivity, but they have also revolutionized ways in which employees can, ahem, be less productive or even counter-productive. E-mail, for example, eases communications but also enables the spreading of malicious gossip or the sharing of company secrets.

What's a boss to do?

Software allows employers to track what their employees are doing right down to the keystroke. Products such as SpyAgent, NetVizor and WebWatcher can detect pornography websites or online gambling.

"There are some really valid, good reasons why employers want to use monitoring," said Andrea Raso Amer, a Vancouver-based partner with the law firm Fraser Milner Casgrain LLP. Employers need to protect security and propriety of information, she said, and they should be able to prevent or investigate possible criminal activities.

But monitoring can also cause more problems than it solves, say employment privacy experts. Ms. Raso Amer advises companies to draft a written policy about such snooping and have employees sign off on it at least once a year. That's because court and quasi-judicial rulings across Canada have granted workers "some amount of privacy in the workplace."

It's still a grey area, and one in which the courts "have not given us a definitive answer," said Ms. Raso Amer.

WebWatcher, a product made by Awareness Technologies of Los Angeles, tracks e-mails, website searches, online usage and more. WebWatcher is designed for consumers, although it might be suitable for mom-and-pop businesses, said Awareness chief executive officer Brad Miller. For larger companies, his firm offers a more sophisticated product called InterGuard.

Companies "have a right to protect their personal intellectual property," said Mr. Miller, who grew up in Montreal and Toronto before moving to the U.S. during high school. His company's software can also block access to websites, such as Facebook, or e-mail addresses. Features can be turned on and off and calibrated for individual employees.

A big concern of employee monitoring of any kind is its effect on staff morale, said Claude Balthazard, the privacy officer for the Human Resources Professionals Association (HRPA), which represents 20,000 HR professionals in Ontario.

"In some businesses more surveillance is merely understood, and in some it would sort of backfire on you," Mr. Balthazard said. "That means basically you're not trusting employees."

Many employers have thus made peace with knowing that employees will conduct a bit of Internet shopping at work, he said. In that way, personal computer use is no different than personal phone use or chatting around the water cooler.

A recent survey of HRPA members and readers of its newsletter found that more than 60 per cent of respondents have at least some concern about the time employees spend on social media websites during work hours. Other results:

  • 55 per cent of companies surveyed monitor employees' Web usage during work hours;
  • 60 per cent of those surveyed have developed a social media policy; and
  • 61 per cent have blocked access to specific websites.

Whether these concerns are warranted is an open question. Use of Facebook, for example, could be skewed by an employee forgetting to log off the site after checking it for a few minutes, said Winnipeg lawyer Brian Bowman of the law firm Pitblado LLP.

"I recognize employers have risks and obligations to manage data," Mr. Bowman said. "But on the other hand, going to a more Big Brother approach isn't the answer. And the privacy commissioner and the courts would agree with that."

One of the big legal tests is "the proportionality perspective." That means the monitoring has to be proportional to the risks. "If you work for a nuclear facility, it's probably more reasonable to have more security than at a corner gas station," Mr. Bowman said.

Workers need to know what is expected of them and they will tend to act accordingly, said Christian Codrington, senior manager of operations for the 5,100-member B.C. Human Resources Management Association.

"Why do you want to catch somebody? Why don't you just tell them you don't want them doing it?" Mr. Codrington said.

While he described unsavoury activities such as surfing for porn as "easy" to deal with, other areas are grey, such as when an employee is using the computer to do outside consulting work when he is supposed to be on the clock with his employer.

On the other hand, computer monitoring can draw attention to gambling or pornography addictions, Mr. Codrington said.

On balance, though, he agrees that secret monitoring of employees seldom has an upside. "If I look at it from a non-financial argument, to covertly monitor and run the risk of being discovered seems to me like a pretty big risk for an employer," Mr. Codrington said.

Legal costs associated with defending a privacy commission inquiry can be substantial, said Ms. Raso Amer. So can the cost of a constructive dismissal suit, she noted, citing the case of a worker who quit her job after learning she had been monitored by a hidden camera. The court found that to be tantamount to wrongful dismissal because the monitoring created a toxic work environment.

"So it's an implied right of my employment contract that you're not going to constantly spy on me," Ms. Raso Amer said.

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